The Business Council of Australia (BCA) welcomes the opportunity to provide a submission on the Fair Work Amendment (Protecting Penalty and Overtime Rates) Bill 2025 (Bill).
The BCA does not support the Bill and believes it should not be passed in its current form or at all.
The Government has prevailed on Australian employers to trust the Fair Work Commission (FWC) as the independent industrial relations umpire. It has given the FWC greater powers than ever before via multiple amendments to the Fair Work Act 2009 (Cth) (FW Act). This includes many new powers under both the Secure Jobs, Better Pay and two tranches of Closing Loopholes amendments. Government Ministers have repeatedly referred to the FWC’s professionalism, the impartiality of its members, and approved its decisions.
It is also important to recall that the Government gave an undertaking to the cross bench regarding the review and simplification of modern awards, including the General Retail Industry Award (GRIA). The GRIA is renowned for its complexity in interpretation and application which not only creates challenges for small, medium and large business but more significantly, constrains employees’ ability to seek work arrangements that better suit their personal circumstances. It was within these undertakings that the proceedings before the FWC were issued to simplify the provisions of the GRIA.
It is confusing, surprising and disappointing, therefore, that when presented with applications by employers to make amendments to awards, the Government has sought to remove the FWC’s ability to determine those applications on their merits (having regard to the modern awards objective and the objects of the FW Act), and lock in the current methodology of determining penalty rates and overtime loadings on a proscriptive and resource-intensive and inflexible hourly basis, despite evidence tabled before the FWC as to the case for change. We note that overtime rates were not mentioned in the policy announcements made to preserve penalty rates ahead of the 2025 election.