NDIS News & Analysis
New industrial relations laws and the disability sector
There’s been a lot of changes to the industrial relations (IR) landscape over the past year. A monster new piece of legislation called the Secure Jobs Better Pay Act 2022 contains many changes that affect the ways a provider can employ and engage workers. Some of the changes will be introduced over the course of 2023, while others are already in effect. Spoiler alert: in some way or another, they affect every organisation that employs workers. So, if you are an employer, there will be some actions for you to take in these changes. And if you’re a worker in the sector, strap in to learn about some new rights at work. We’ve summarised the changes below and suggested what they mean for providers and workers.
Group bargaining is also referred to as “supported bargaining” and “multi-employer bargaining”. This is the biggest change for broader IR strategy and has taken up most of the headlines. Currently, rough estimates put around half of all workers in the sector being engaged through an enterprise bargaining agreement (EBA), which is an agreement covering pay, entitlements, terms, and working conditions between the workers in an individual workplace and the employer.
The option of multi-employer bargaining allows workers to bargain together even when engaged by different employers. So, workers from Provider A, Provider B, and Provider C could band together to negotiate an enterprise agreement that covers all workers across all three organisations, rather than each provider having its own enterprise agreement just for the workers it employs. While there was provision for this approach in existing legislation, it was rarely used. Employees can now also apply to force employers to bargain together, and the Fair Work Commission can compel this to happen. In theory, workers across entire industries could bargain together as one group. The government explicitly had traditionally low-paid sectors like the disability sector in mind when drafting this legislation.
if these changes leave you hopeful that low paid workers will be able to agitate and organise for better conditions, I’m with you. But, despite my love of a good protest song and the Billy Bragg posters on my adolescent bedroom walls, I can also see why many organisations are nervous about what group bargaining means. It could be very difficult, I imagine, to agree on terms that meet the needs of many workers across many organisations. And one risk to our sector is that, in the highly unlikely event that employees strike across organisations, it could bring disability supports to a halt.
One of the things the government is hoping to address with group bargaining is stagnant wage growth. Generally, Labor governments believe that when workers are organised, they have more power to negotiate higher wages and better conditions. But many employers will say that it’s not a lack of commitment or willingness that is suppressing wages – it’s the NDIA cost model. Fix that, and wages can suddenly rise and conditions can improve.
There are also several other technical changes to the enterprise bargaining process with these changes, but we won’t go into detail in this article. More details are available here.
Prohibiting pay secrecy
This change prohibits terms in employment contracts that aim to stop employees discussing their pay with one another and gives employees the workplace right to discuss terms with colleagues. This change came into effect in December 2022. So, if you have pay secrecy clauses in employment contracts, the advice is to remove them immediately.
Three additional protected attributes
Protected attributes are things that the employer must protect. Essentially, an employee cannot be discriminated against based on one or more of these attributes. There were already 13 (race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction, and social origin), with 3 new attributes added: breastfeeding status, gender identity, and intersex status. These new attributes are on top of your obligations to protect staff from discrimination on the 13 existing grounds. These changes came into effect in December 2022, so including these additional obligations and protected attributes in your policies, procedures and processes should be at the top of your to-do list.
Flexible working arrangements
Flexible working arrangements have been extended in both scope and process. People experiencing domestic violence and family violence can now request flexible working arrangements. There’s also now a more detailed process that an employer must follow (and demonstrate that it has followed) when turning down any flexible working arrangements for anyone. Again, employers should make sure their internal procedures are updated to reflect these changes, as they will affect many roles and functions in an organisation. These changes come into effect in June 2023, so employers have some time to prepare.
New Expert Panels in the Fair Work Commission
An Expert Panel exists to connect the Fair Work Commission to real life. Expert Panels make decisions on minimum pay and terms, based on the views and experiences of interested organisations and individuals. A number of new Expert Panels were announced in the legislation, including one focusing on the Care and Community Sector. It is tasked with hearing wage-related matters. This is good news for both workers and providers, as the members of the new panel must have specific expertise in the sector. It should also help ensure that any changes made by the Fair Work Commission are grounded in the reality of delivering supports.
Paid family and domestic violence leave
Paid family and domestic violence leave is available to employees of organisations that have more than 15 employees. Every employee is entitled to 10 days of paid family domestic violence leave, including part-time and casual employees. This is effective from 1 February 2023 or the day the employee starts work if they are hired after that date. Family and domestic violence leave does not accrue, so if you don’t use your 10 days this year, you don’t get 20 days next year. It sits at 10 days until it’s needed.
Ten days is the minimum amount of time that employers are legally obligated to give. If your organisation gives more days of leave for this purpose, that’s excellent! You’re doing good work, please continue. The National Employment Standards entitles an employee to a minimum of 10 days, regardless of what an organisation’s own policies say.
We could talk all day about the complex causes, flows, and solutions to workforce challenges. But it’s important to get the basics right. There are things for every provider to act on in this list of legislative changes. Implementing these changes should be on every employer’s to-do list. A summary of the changes and the dates when they are effective can be found at https://www.fairwork.gov.au/newsroom/news/secure-jobs-better-pay-changes-to-australian-workplace-laws.