Respect@Work Act 2022 and Equal Remuneration Amendments, plus the abolition of the ABCC through the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022

*Note the information in this Alert takes account of the passage of the Bill on 2 December 2022 and subsequent Royal Assent.

EQUAL REMUNERATION

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Act) amends the equal remuneration provisions in the Fair Work Act 2009 (Cth) (FW Act) in an effort to overcome wage disparities.

Currently, the Fair Work Commission (FWC) can vary modern award minimum wages if the FWC is satisfied the variation is justified by work value reasons. Under the Act, the FWC’s consideration of work value must be free from assumptions based on gender and consider whether historically the work has been undervalued because of assumptions based on gender. In the Care and Community Sector this determination will be made by an Expert Panel.

The Act also amends the provisions in the FW Act in respect of equal remuneration orders.  Currently the FWC can make an equal remuneration order upon application by an employee, employee association or the Sex Discrimination Commissioner. The Act provides that the FWC must be constituted by Expert Panels and the FWC can make an equal remuneration order on its own initiative.

In deciding whether there is equal remuneration for work of equal or comparable value, the FWC must take into account orders and determinations in annual wage reviews and may also take into account comparisons within and between occupations and industries to establish whether historically the work has been undervalued on the basis of gender.

If the FWC uses a comparison for the equal remuneration order it will not be limited to similar work and the comparison does not need to be a comparison with an historically male-dominated occupation or industry. The FWC will not be required to find discrimination on the basis of gender to establish the work has been undervalued.

Employers should review rates of pay and consider whether gender based wage disparities exist and why. The changes to the FW Act may result in variations to modern awards and an increase in equal remuneration orders.

ABOLITION OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION

The Australian Building and Construction Commission (ABCC) has been the construction industry’s industrial ‘watchdog’ since 2016.

The ABCC’s enforcement powers and compliance responsibilities were reduced in July 2022 with the introduction of the Code for the Tendering and Performance of Building Work Amendment Instrument 2022. The amended Code removed most substantive requirements from the Building Code.

On 10 November 2022, the ABCC’s role in enforcing the FW Act in the commercial building and construction industry transferred to the Fair Work Ombudsman (FWO). This change to the function of the ABCC did not require the passage of the Bill though Parliament.

The Act has further impacts for the building and construction industry by repealing large parts of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act).  The Act provides for the abolition of the ABCC and the BCIIP Act will be renamed the Federal Safety Commissioner Act 2022 (Federal Safety Act). The object of the Federal Safety Act is to ‘promote health and safety in relation to building work’

The Act repeals provisions in the BCIIP Act that control unlawful industrial action, unlawful picketing, coercion, discrimination and unenforceable project agreements in the building and construction industry. It removes the higher penalties that have applied to building industry participants.

The ABC Inspector role will end as will the powers of authorised officers to enter premises and require the production of records. Some functions that were with ‘an authorised officer’ under the BCIIP Act will now be with ‘a Federal Safety Officer’ under the Federal Safety Act. Sections relating to the issuing and review of compliance notices under the BCIIP will also be repealed.

Those functions of the ABCC not repealed by the Act will be transitioned to the FWO. Under the changes, the function of the Australian Building and Construction Commissioner (as distinct from the ABCC) will be to provide information and assistance to the FWO.

Employers with ongoing ABCC investigations or proceedings will be advised by the ABCC when that matter transfers to the FWO. Information or evidence obtained by the ABCC or ABC Inspector prior to the amendments can be used by the FWO or Fair Work Inspector.

At the present time the ABC Commissioner retains responsibility for cases involving the ABCC that are currently before the Courts, and these will remain with the ABCC until they are transitioned to the FWO. The FWO will then become the party to that litigation.

The ABCC’s abolition will occur on a date fixed by proclamation, or in any event, on 6 February 2023 (2 months after the legislation received Royal Assent).

Employers in the building and construction industry should be prepared for a potential increase in union activity on construction sites resulting, in part, from lower penalties and the end of an industry specific regulator. Currently the ABCC can be contacted for advice on unlawful pickets and existing court cases but employers will increasingly need to contact the FWO for new matters and pursue their own enforcement action in relation to breaches under the Fair Work Act 2009.

Key elements of the Bill include:

• The Abolition of the Australian Building and Construction Commission
• Equal Remuneration
• Prohibiting Pay Secrecy
• Prohibiting Sexual Harassment in connection with work
• Fixed Term Contracts
• Flexible Work
• Termination of Enterprise Agreements after Nominal Expiry Date

• Sunsetting of “Zombie Agreements”
• Initiating Bargaining (Multi-Employer Bargaining)
• Better off Overall Test
• Bargaining Disputes
• Industrial Action
• Single Interest Employer Authorisation
• Cooperative Workplaces
• Enhancing the Small Claims Processes