The passage of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) has brought about significant changes to the obligation on employers to provide Flexible Working Arrangements. Holman Webb foreshadowed these changes in our October 2022 article The Future of Flexible Work: Amendments to the Fair Work Act 2009.

In this article, we will discuss the specific changes.

The changes come into force on 6 June 2023.  It is important that employers consider the changes, given the prevalence of flexible working arrangements in the aftermath of the COVID-19 lockdowns

On 26 October 2022, the Commonwealth Government announced that it will introduce legislation to amend the provisions of the Fair Work Act 2009, as it relates to flexible work arrangements. 

Purportedly, the purpose of the amendments is to give the Fair Work Commission power to order that employers deal with requests for flexible workplace arrangements.  The legislation may also give the Fair Work Commission power to order that flexible workplace arrangements be put in place.

The wording of the Bill has not yet been published – however, if the final Bill matches industry expectations, it will for the first time give the Fair Work Commission direct independent power to order flexible work arrangements outside the scope of the disability legislative scheme.

In a Full Bench of the Fair Work Commission, the Vice and Deputy Presidents applied recent decisions of the High Court to determine that a Deliveroo delivery worker, Mr Franco, was not an employee and was an independent contractor.  The matter in question is Deliveroo Australia Pty Ltd v Franco [2022] FWCFB 156.

The full bench, when applying the rationale in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations & Anor v Jamsek & Ors [2022] HCA 2, found that on a strict interpretation of the terms of the agreement to carry out work, Mr Franco was a contractor and not an employee.

The full bench did say that had they applied the multifactorial test which applied before Jamsek, it would have concluded that Mr Franco was an employee.

From Friday 1 July 2022, there will be a number of changes set to impact all Australian businesses.

These changes include increases to minimum wages, compulsory superannuation and penalty units in NSW.   

The changes come as a timely reminder for businesses to review their contracts and industrial instruments. 

It is also a good time for businesses to ensure that they are meeting their minimum obligations, and to confirm who will bear the increase to superannuation.

A recent decision of Deputy President Beaumont in the Fair Work Commission (Application by Ranmeet Kaur [2022] FWC 487) has examined the scope of the FWC’s power to make orders to stop sexual harassment which were introduced under amendments to the Fair Work Act in 2021.

The case examined both the jurisdictional requirements necessary for the FWC to make orders and the evidentiary requirements for it to be satisfied that a contravention had occurred, warranting the making of orders.

In light of the recent extended lockdown in Sydney, and the new short lockdown in Melbourne, the question again arises in relation to whether an employer can require its workers to be vaccinated against the COVID‑19 virus.

There are a myriad of discretionary issues for an employer to step through in determining whether it can direct its workers to be vaccinated; as well as what steps an employer can take if the worker refuses to follow such a direction.