After a successful campaign by the Union movement, the Federal Parliament passed a watered-down Omnibus Bill but unfortunately further entrenched Casual Employment. The Senate passed the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (the Omnibus Bill) with a number of significant amendments that removed Schedules 2 to 6 from the Bill.  This means that the following proposed changes did not form part of the Bill which was approved by the Senate:

• Schedule 2 – Modern Awards – simplified additional hours agreements and flexible work directions.
• Schedule 3 – Enterprise agreements – various changes to the enterprise agreement system, including pre-approval processes, the hearing of agreement approvals, the interaction of agreement terms with the NES and other provisions relating to transfer of business and the sunsetting of pre-Fair Work Act agreements.
• Schedule 4 – Greenfield agreements – the proposed ‘major project agreement’ stream of greenfield agreements
• Schedule 5 – Compliance and Enforcement – Increased civil penalties, new small claims process and the criminalisation of underpayments.
• Schedule 6 – Fair Work Commission – various changes to the Commission processes for dismissing applications and appeals.

Schedule 1 of the Bill relating to casual employees was passed with some amendments.

Government Amendment

The Government amendment the Schedule to include a new s 548(1B) the effect of which is to allow the Federal Circuit and Family Court of Australia or a magistrates court to deal with an application for an order (other than an order for a pecuniary penalty) in a dispute over casual conversion under the small claims process in s 548 where the applicant elects for the small claims process to apply. The small claims process allows matters to be dealt with informally and without the court being bound by rules of evidence and procedure.

Pauline Hanson One Nation Amendments

A series of One Nation amendments to Schedule 1 were also passed. These were:

• An amendment to s 15A(2)(b) where the wording in the list of matters to be taken into account in determining whether at the time the offer is made, the employer makes no firm advance commitment was changed from ‘whether the person will work only as required’ to ‘whether the person will work as required according to the needs of the employer’.
• An amendment to include a new s 66AA under which small businesses (fewer than 15 employees) are excluded from the operation of the new requirement for employers to offer casual conversion (Subdivision B of the new Division 4A). A new s 47A in the Bill means that those who were casual employees or designated as casual employees will still be covered by the remaining parts of the new conversion provisions i.e., small business casual employees will have a right to request conversion as per the new NES conversion provisions. Award conversion provisions will also continue to apply to all employees subject to any variations made to awards under the review process in s 48 of Schedule 7.
• The FWO’s Casual Employment Information Statement is to contain information about the casual conversion entitlements of casual employees employed by small business employers.
• An amendment to the set-off provisions in s 545A(3)(b) relating to setting off proportional amounts. This appears to be a clarifying amendment only.
• A review of the operation of the new provisions contained in the Bill is to be conducted within 12 months after commencement.

The Bill returned to the House of Representatives last week (22 March), and was passed by a majority of 63 votes to 61.
Adam Bandt, Helen Haines, Bob Katter, Rebekha Sharkie, Zali Steggall and Andrew Wilkie all voted with the ALP both on the amendment to restore the wage theft provisions and against the final Bill.