Workplace reforms - Morrison Government's IR Bill released 

Casual Employees

Statutory definition of "casual employee"

• Introduction of a new statutory definition of "casual employee": An employee will be a casual employee if they accept an offer of employment that makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
• This will be assessed at the time employment is offered/accepted.

Casual conversion

• Introduction of a statutory obligation for employers to offer a casual employee conversion to part-time or full-time employment after 12 months' employment, where for at least six months of that period the employee has worked a regular pattern of hours on an ongoing basis.
• Employers will have a right to not make an offer or refuse an employee request if there are reasonable grounds based on known, or reasonably foreseeable facts.
• Casual employees who are not offered conversion on reasonable grounds or decline a request will retain a residual right to request conversion every six months provided they have met the criteria for an offer in that period
• Importantly, periods of casual employment prior to conversion do not count as service for the purposes of paid leave, notice or redundancy pay.

Casual loading and 'double dipping' of entitlements

• Courts will now be required to offset loading amounts against claims for other entitlements in the event an employee has been misclassified as a casual employee.
• Overturns the effect of the Rossato decision in which the Federal Court found that an employer was not entitled to set-off casual loading against the various unpaid leave entitlements of an employee misclassified as casual.
  Note: The employer in Rossato has been granted special leave to appeal this decision by the High Court which will hear the appeal in 2021.

Casual Employment Information Statement

Enterprise bargaining 

Pre-approval requirements

• Employers will only be required to take reasonable steps to ensure employees are given a fair and reasonable opportunity to decide whether or not to approve an agreement, removing the strict requirements in relation to access and explanation timeframes.
• An employer will be taken to have complied if they meet criteria that broadly reflect the current requirements. A failure to meet these criteria will not be fatal to approval. 

BOOT - Extension of public interest exemption

• Introduces a temporary two year provision that will allow the FWC to approve an agreement that does not pass the BOOT if it is satisfied it is appropriate to do so and not contrary to the public interest.
• In doing so, the FWC must take into account the views and circumstances of employers and employees, the impact of COVID-19 on the enterprise and the extent of employee support for the agreement. The agreement must have a nominal expiry date within two years of approval. 

BOOT – matters FWC can consider

When applying the BOOT, the FWC will now be required to:

• only take into account patterns or kinds of work, or types of employment, that are currently engaged in or are reasonably foreseeable, not those that are hypothetical or not reasonably foreseeable;
• have regard to the overall benefits (including non-monetary benefits) employees would receive under the agreement compared to a relevant modern award; and
• have regard to any views relating to whether the agreement passes the BOOT expressed by employers and employees and their bargaining representatives.

Agreement compliance – interaction with NES

There is no longer a requirement that the FWC be satisfied the terms of an agreement do not contravene the NES, but agreements must include a clause addressing interaction with the NES.  

Sunset of pre-FW Act agreements

All agreements and other specific instruments made prior to the commencement of the FW Act or during the bridging period prior to the commencement of the modern award system will cease to operate on 1 July 2022. Employees covered by such agreements at that date will revert to the modern award.

Agreements to be approved within 21 days

The FWC will now be required, as far as practicable, to determine applications for approval or variation of enterprise agreements within 21 days. 

Award flexibility 

Additional hours for part-time employees

• Introduction of a new "simplified additional hours agreement", a mechanism for employers and eligible part-time employees to agree to additional hours of work at ordinary time rates of pay. These provisions will operate as terms of 12 specified awards including awards covering retail, hospitality, food processing, business equipment and vehicle repairs/services.
• Employees must be covered by an identified modern award and work at least 16 hours a week. Agreements must identify the additional agreed hours and be entered into before the hours are worked.
• Employees must still receive applicable penalty rates (other than overtime) required by a modern award when working additional agreed hours. 

JobKeeper extensions

The Bill will extend current JobKeeper flexibilities concerning duties and location of work under identified modern awards for a further two years.  

Compliance and enforcement 

Criminalising underpayments

• Introduces a criminal offence for an employer to dishonestly engage in a systematic pattern of underpaying one or more employees.
• Intends to exclude the application of State and Territory industrial laws in relation to underpayments and records offence to national system employers and employees. 
• Subjective dishonesty is required meaning non-intentional conduct is not captured.
• A 'systematic pattern of underpaying' refers to a recurring pattern of conduct or a series of methodical acts over time. It does not encompass inadvertent or one-off conduct and will depend on all relevant circumstances including the employer's response to complaints.
• The maximum penalty for an individual offender is imprisonment of up to 4 years or 5,000 penalty units (AU$1,100,000). For a corporation, the maximum penalty is 25,000 penalty units (AU$5,500,000).
• The offence includes provision for ancillary liability for individuals involved in the commission of the offence. Maximum penalties for which can include the same penalties as for the offence itself.
• Only the FWO or ABCC may commence proceedings for an offence which must be brought within seven years of conduct occurring. 

Compliance notices, infringement notices and enforceable undertakings

• FW Inspectors able to give notice requiring a person to take specified action to remedy the direct effects of certain contraventions including contraventions of the NES or a modern award.
• Maximum pecuniary penalty for failure to comply with a compliance notice increased from 30 penalty units (AU$6,660) to 45 penalty units (AU$9,990) for an individual (five times higher for a corporation).
• Clarified matters the FWO may consider for the purpose of deciding whether to accept an enforceable undertaking. 

Functions of the FWO and ABCC – encouraging voluntary compliance

The FWO and ABCC will be required to publish information relating to the circumstances in which they will commence proceedings or, alternatively, defer proceedings to deal with suspected non-compliance through other compliance mechanisms.

Small claims process – underpayment matters in the FWC

• Federal Circuit Court and magistrates courts will be able to refer small claims underpayment matters to the FWC for conciliation and, if conciliation is unsuccessful, arbitration by consent.
• The jurisdictional limit for small claims will be increased from AU$20,000 to AU$50,000 and successful small claims applicants can recover filing fees. 

Underpayment matters – civil penalties tied to value of benefit

• New defined term of remuneration-related contraventions with increased base maximum civil penalties for ordinary remuneration-related contraventions by an uplift of 50 per cent.
• Introduction of an alternative new penalty calculation method for remuneration-related contraventions by bodies corporate based on a multiple of the ‘value of the benefit’ obtained from the contravention. This will only be available if the Court can determine the value of the benefit of the contravention to the body corporate. 

Fair Work Commission 

FWC processes

The FWC will be able to:

• Deal with appeals 'on the papers' where appropriate;
• Vary or revoke decisions relating to enterprise agreements and workplace determinations more easily, to correct minor errors; and
• Deal more effectively with unmeritorious applications.