Long needed IR changes lose the BOOT and 4 that are still in – Update for HR and Employers

“Dumping” the 2 year BOOT exception but other changes are still being attempted

We recently discussed the Government’s IR proposed changes in the article Loosening The BOOT Straps And 9 Other Industrial Relations Changes. There has finally been some movement in this regard with discussions with the cross-bench proving to be a major stumbling block. As an update the BOOT test changes have now been scrapped (well at least 1 major one).

The 2 year exception to the BOOT Test was meant to encourage more EBAs to pass through the Fair Work Commission and give COVID-19 effected Employers the ability to utilise EBAs.  However, even with this controversial amendment being “dumped” the EBA process is still under intense scrutiny. 

Four (4) areas of the BOOT that is still being kept in the proposed IR bill include:

  1. The Fair Work Commission will have more ability to “block” union interference in EAs and EBAs where the union does not have any involvement 
  2. Removing the requirement for an EBA to be genuinely agreed with another test around the substance of the EBA 
  3. Requiring the Fair Work Commission to determine applications within 21 days – greatly speeding up the process
  4. The Fair Work Commission is not to consider hypothetical ways workers could be disadvantaged by pay rates

This is an area to keep on watching as the changes will still likely go through a bit more “dumping” until an IR bill can get through the senate.  What is important to note is that EBAs may get some changes but over reliance on this in your workforce planning and HR strategy is still fraught with ambiguity.

Other Changes

Some other changes include:

  • A casual employee statutory definition which seeks to combat the Rossato Case and Skene Case and basing the definition using “no firm advance commitment to continuing” at the time of the offer (not on the basis of subsequent conduct)
  • Requirement to offer long term casual employees an opportunity to convert to full time or part time
  • An off set for any casual employees who are subsequently eligible for leave loading
  • Flexible work directions to employees about their duties and location of work for certain modern awards
  • Grounds for which the Fair Work Commission could dismiss unfair dismissal applications to be broadened to include:
    • Misconceived; or
    • Lacking in substance; or
    • An abuse of the process of the Fair Work Commission.

This is the time for Human Resources to ensure their industrial relations and workplace relations processes, procedures and documents align legally.  In particular with one eye on the possibly myriad of changes coming.  NB Lawyers – Lawyers for Employers undertake and offer a Legal Business Review which include the above.  Reach out via [email protected] or +61 (07) 3876 5111 to book a consultation.

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Written By 

Jonathan Mamaril 


NB Lawyers – Lawyers for Employers 

[email protected] 

+61 (07) 3876 5111 

Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law at NB Lawyers – Lawyers for Employers who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.