Yesterday, the Fair Work Commission commenced its new “Work and Care” Review of Modern Awards which, on face value, could bring about the most substantial and biggest range of changes to our modern awards for decades.

When modern awards were created back in 2009, they were essentially a merger and rationalisation of thousands of pre-existing Federal, State and Enterprise-based awards leading to the 121 modern awards that we have today. 

This “Work and Care” Review has its origins in a Senate Inquiry into Work and Care established in 2022 which led to the Minister for Employment and Workplace Relations instructing the President of the Fair Work Commission to initiate the review.

The Fair Work Commission has issued a discussion paper which sets out the terms and process of the review and addresses relevant recommendations made by the Senate Committee and some other matters. It also has a comprehensive set of questions on the variety of matters to be considered in the review. You can access the report here.

The Senate Committee’s recommendations

Here is summary of the relevant recommendations of the Senate Committee as presented in the FWC discussion paper which shows how far reaching changes could be:

• An enacted right to “disconnect from work” enabling and supporting productive work from home and flexibility of work, protecting workers’ rights to disconnect from their job outside their contracted hours, reinforcing that right with employers and applying a positive duty on employers to reasonably accommodate the right wherever possible;
• Amending the Fair Work Act to provide improved rostering rights for employees and, in particular, working carers, by requiring employers to implement rostering practices that are predictable, stable and focused on fixed shift scheduling (eg fixed times and days) and increasing employers’ existing obligations to genuinely consider employee views including working carers on the effects of roster changes and  other work arrangements;
• Conducting a work value case in care sectors including early childhood education, aged and disability care and sectors covered by the SCHADS Award with a range of entitlements specifically mentioned eg payment for work-related travel time, administrative responsibilities and essential training and a minimum shift call-in time;
• Extending the definition of “immediate family” for carer’s leave purposes to include any person who has been a member of the employee’s household for at least 18 months, an employee’s children including adopted, step and ex-nuptial children, an employee’s siblings or the siblings of an employee’s spouse or de facto partner or any other person significant to the employee to whom the employee provides care;
• Consideration be given to the adequacy of existing leave arrangements including separate carer’s leave and annual leave;
• Reviewing access to and compensation for paid sick leave and annual leave for casual and part-time workers;
• Requiring employers to provide at least two weeks’ notice of roster changes, to genuinely consider employees’ view on the impact of roster changes and to accommodate the needs of employees plus an employee “right to say no” to extra hours with protection from negative consequences;
• Reviewing the operation of the 38 hour week with consideration of stronger penalties for long hours and other possible ways to reduce them including through the work health and safety system to ensure safe working hours;
• Introducing an enforceable “right to disconnect from work, restricting employers from communicating with workers outside their contracted hours except for emergency or welfare reasons plus increase penalties for wage theft for unpaid additional hours;
• Introducing mandatory annual reporting of companies with 20,000 or more employees in Australia on workplace practices to ensure roster justice and flexible working arrangements and related collection of data on requests for flexible working arrangements made and shift roster changes;
• Developing a new statutory definition of casual employment that is restricted to work that is genuinely intermittent, seasonal or unpredictable and restricting the use of “low base” contracts, ensuring part-time employees have access to regular and predictable patterns and hours of work with consideration of penalty rates for work outside contracted hours;
• Developing standard definitions of full-time and part-time employment for inclusion in the Fair Work Act 2009;
• Undertaking a review of standard working hours with a view to reducing the standard working week.

Please remember that these are just recommendations which are to be considered in the review being undertaken by the Fair Work Commission. Some of the items require legislative change and that would be up to the federal government to negotiate through Parliament. So it will be a while before we know exactly what any award or legislative changes that flow from the Senate Inquiry will look like in real terms.

What this all means

The last year and a bit have delivered far more change in workplace relations law and employment rules via legislation, modern award reviews and decisions made by the Fair Work Commission and the Courts than we have seen in years.

This review tells us that we can expect more of the same in the years ahead.

The other element here is the WHS one that is noted in relation to extended working hours but equally links the positive duty to eliminate or control psychosocial hazards, many of which can be connected to some of the recommendations of the Senate Inquiry – eg around remote work, organisational justice, reward and recognition, job demands, etc.

The positive duties are progressively being rolled out across the country via State and Territory legislation.

For this reason, it is important to consider the agenda here in that broader context and the smartest way to do that is to consider whether any of the issues raised here are demonstrative of an issue in your workplace and the need for you to do something about that.

Conversely, have a think about whether you already accommodate some of the items raised here or perhaps you could actually do so. Remember that the Fair Work Act and modern awards provide minimum standards and there is nothing that should stop you from considering what you might be able to offer more than those in any way.

Given the challenges that we have in both accessing the talent we need for our businesses and looking after our own and our employees’ wellbeing, anything we can do over and above those minimum standards helps us on both counts.

You could also consider negotiating an enterprise agreement with your employees delivering on some of those above award benefits and using that as a public validation of your commitment to your people/your Employer Value Proposition. There might also be some changes that you want to make that are not allowed for under the relevant Award and so an enterprise agreement might be useful legally validate and protect desired changes.

We will monitor developments in the review and communicate further as and when developments occur.

If there is anything here that resonates with you and you would like to explore further, give us a call on 1300 108 488 or email enquiries@ridgelinehr.com.au. We would love to have a chat about it.