2023 Volume 36 Issue 2
Editorial
Editorial
Tess Hardy and Shae McCrystal
Articles
Will Pay Be Better and Jobs More Secure? Analysing the Albanese Government’s First Round of Fair Work Reforms
Andrew Stewart, Shae McCrystal and Anthony Forsyth
Abstract
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) may be just the first in a series of major reforms to the Fair Work system from the Labor Government elected in 2022. But its content says much about the priorities of what is shaping as an activist administration. Without traversing everything in the nearly 300 pages of amendments, we focus on important reforms concerning the equity and transparency of pay arrangements, the use of fixed or contingent term contracts, requests for flexibility in work arrangements, multi-employer bargaining, the processes for approving or terminating enterprise agreements, protected industrial action, and the resolution of bargaining disputes. Despite the Act’s title, it has relatively little to say about job security, with many major reforms in that area still to come. It also remains to be seen how effective the amendments will be in addressing wage stagnation, even if they prompt a resurgence in collective agreement-making. But if there is one strong theme that links many of the reforms, it is that of making workplaces fairer and safer for women. The foregrounding of concerns around gender equality is striking, especially in legislation of this size and scope.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) may be just the first in a series of major reforms to the Fair Work system from the Labor Government elected in 2022. But its content says much about the priorities of what is shaping as an activist administration. Without traversing everything in the nearly 300 pages of amendments, we focus on important reforms concerning the equity and transparency of pay arrangements, the use of fixed or contingent term contracts, requests for flexibility in work arrangements, multi-employer bargaining, the processes for approving or terminating enterprise agreements, protected industrial action, and the resolution of bargaining disputes. Despite the Act’s title, it has relatively little to say about job security, with many major reforms in that area still to come. It also remains to be seen how effective the amendments will be in addressing wage stagnation, even if they prompt a resurgence in collective agreement-making. But if there is one strong theme that links many of the reforms, it is that of making workplaces fairer and safer for women. The foregrounding of concerns around gender equality is striking, especially in legislation of this size and scope.
Respect@Work Amendments: A Positive Reframing of Australia’s Sexual Harassment Laws
Belinda Smith
Abstract
Australian law on sexual harassment has seen many changes in the past few years. This article outlines and analyses these changes in light of the findings of the inquiry that recommended them, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces. The Report found that sexual harassment was pervasive, harmful and clearly not being addressed by the existing laws, which relied almost entirely on individual victims to lodge formal complaints and bear the burden of driving change. The legislative amendments serve to harmonise and improve individual protections across the Sex Discrimination Act 1984 (Cth), Fair Work Act 2009 (Cth) and work health and safety laws. The most significant change, though, is the introduction of a new duty on persons conducting a business or undertaking to take positive steps to prevent harassment and sex discrimination. While its deficiencies are acknowledged, this duty could play an important functional and symbolic role in shifting regulatory attention from victims to their employers and other duty holders, and more importantly, from redressing harm after the fact to preventing it in the first place.
Australian law on sexual harassment has seen many changes in the past few years. This article outlines and analyses these changes in light of the findings of the inquiry that recommended them, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces. The Report found that sexual harassment was pervasive, harmful and clearly not being addressed by the existing laws, which relied almost entirely on individual victims to lodge formal complaints and bear the burden of driving change. The legislative amendments serve to harmonise and improve individual protections across the Sex Discrimination Act 1984 (Cth), Fair Work Act 2009 (Cth) and work health and safety laws. The most significant change, though, is the introduction of a new duty on persons conducting a business or undertaking to take positive steps to prevent harassment and sex discrimination. While its deficiencies are acknowledged, this duty could play an important functional and symbolic role in shifting regulatory attention from victims to their employers and other duty holders, and more importantly, from redressing harm after the fact to preventing it in the first place.
Industrial Legislation in the States and Territories in 2022
Daniel Tracey
Abstract
The states and territories continued to pass industrial legislation in 2022 despite the intense scrutiny of legislation passed by the Federal Parliament. The Northern Territory introduced changes to its anti-discrimination framework. Queensland introduced comprehensive reforms to its industrial relations legislation following a review handed down in February 2022, strengthening protections against sexual harassment and family and domestic violence (aligned with similar efforts at the federal level), bolstering the Queensland Employment Standards, and overhauling its public sector employment framework. The Australian Capital Territory introduced reforms to its work health and safety regime, as did Victoria, Tasmania and South Australia — all focussed on strengthening the operation and functionality of their workers’ compensation schemes. Western Australia introduced changes to its framework for managing owner-driver relationships, providing better protections for small business operators and those in sometimes precarious contractual arrangements.
The states and territories continued to pass industrial legislation in 2022 despite the intense scrutiny of legislation passed by the Federal Parliament. The Northern Territory introduced changes to its anti-discrimination framework. Queensland introduced comprehensive reforms to its industrial relations legislation following a review handed down in February 2022, strengthening protections against sexual harassment and family and domestic violence (aligned with similar efforts at the federal level), bolstering the Queensland Employment Standards, and overhauling its public sector employment framework. The Australian Capital Territory introduced reforms to its work health and safety regime, as did Victoria, Tasmania and South Australia — all focussed on strengthening the operation and functionality of their workers’ compensation schemes. Western Australia introduced changes to its framework for managing owner-driver relationships, providing better protections for small business operators and those in sometimes precarious contractual arrangements.
Major Court and Tribunal Decisions 2022
Eugene Schofield-Georgeson
Abstract
This article examines a range of high-profile decisions in which aggressive employer strategy was either pursued in the courts or placed on trial. Accordingly, it covers the redefinition of ‘employment’ and ‘casual employment’ by the High Court, along with the Federal Court litigation involving Qantas and the issue of adverse action. Industrial rights involving industrial action, trade union rights of entry and civil penalties are also addressed. Not to be forgotten are the work value and minimum pay cases, together with an array of cases on entitlements and underpayment class actions. The article concludes by considering an emerging caselaw on psychological injury.
This article examines a range of high-profile decisions in which aggressive employer strategy was either pursued in the courts or placed on trial. Accordingly, it covers the redefinition of ‘employment’ and ‘casual employment’ by the High Court, along with the Federal Court litigation involving Qantas and the issue of adverse action. Industrial rights involving industrial action, trade union rights of entry and civil penalties are also addressed. Not to be forgotten are the work value and minimum pay cases, together with an array of cases on entitlements and underpayment class actions. The article concludes by considering an emerging caselaw on psychological injury.