A summary of employment law (Fair Work) changes

On 6 December 2022, the Federal Government made significant amendments to the Fair Work Act 2009 (Cth). Below is a brief summary of some of the key changes:

From 7 December 2022

Pay secrecy

Pay secrecy clauses in existing employment contracts no longer have any legal effect and are banned from being included in future contracts. Employees now have a workplace right (protected by law) to openly discuss their remuneration with one another.

Anti-discrimination

Existing protected discriminatory attributes have been extended to include breastfeeding, gender identity and intersex status.

From 6 March 2023

Sexual harassment

Employers will have a positive duty to proactively take reasonable measures to eliminate, as far as possible, unlawful sexual harassment and sex discrimination in the workplace and to manage these risks in a similar way to health and safety risks. Unless employers can demonstrate that they have taken such measures, they may be held vicariously liable for the sexual harassment behaviour of their employees.

Employees will also have the right to apply to the Fair Work Commission for orders to stop sexual harassment in the workplace from continuing, and to deal with disputes about this (which may also be referred to the courts).

From 6 June 2023

Flexible work requests and requests to extend parental leave

Existing rights of employees to make flexible work requests, or to extend their period of parental leave will be strengthened to include the following:

1. requiring an employer to:
   • genuinely try to reach agreement with the employee and to consider the consequences of refusing the request (which is limited to certain reasonable business grounds);

• • respond to a request in writing within 21 days and if it is refused, to specify reasons for the refusal;

2. enabling employees to refer disputes about their requests to the Fair Work Commission;
3. adding pregnant employees and those experiencing domestic violence to the list of employees who are eligible to make flexible work requests

By 6 June 2023 (unless proclaimed earlier)

Enterprise bargaining

Two new multi-employer bargaining streams will come into effect, namely:

1. “supported bargaining agreements”, in terms of which the Fair Work Commission or the Minister for Employment and Workplace relations may require multiple employers in low paid industries, or which have common industries, to bargain together; and
2. “single interest employer authorisations”, in terms of which the Fair Work Commission may direct certain employers to bargain with other employers if their employees have clearly identifiable interests and want to bargain with those other employers. This will only apply to employers with at least 20 employees and who are not covered by another enterprise bargaining agreement which has nominally expired.

Enterprise agreements

The Fair Work Commission will be able to take into account the views of the parties to an enterprise agreement as to whether a proposed agreement passes the Better Off Overall Test (“BOOT”). They will also undertake a global assessment (as opposed to the previous line by line assessment) when considering whether an employee will be better off under the proposed agreement compared to the underlying Modern Award.

From 6 December 2023

Employment contracts for a specified term (includes fixed term contracts)

With some exceptions, it will become unlawful for employers to enter into employment contracts for a fixed term or maximum term exceeding two years (or which cumulatively exceed two years).

Exceptions include:

1. fixed term or maximum term contracts entered into prior to 7 December 2023;
2. employees whose remuneration exceeds the high income threshold (currently $162,000);
3. employees with specialised skills who are employed to complete a specified task;
4. employees who replace permanent employees on leave or for emergency situations;
5. apprentices and trainees;
6. where the provisions of a Modern Award allow this.

Employers will also be required to give employees on fixed or maximum term contracts a “Fixed Term Contract Information Statement”.

As shown above, some of these changes are already in effect while others will gradually come into effect during 2023. Breaches of these changes will expose employers to significant penalties. Employers should therefore review their current work practices and arrangements to ensure compliance with the above changes and seek professional assistance where necessary.

How can iHR Australia help:

• Get specialised workplace relations advice and assistance to employers including comprehensive training courses which have been updated to provide further detail about these changes.
• employers can also assess their HR policies and procedures, agreements and contracts.

About the Author

Costa Brehas is an experienced workplace relations practitioner having also previously practised as a lawyer for over 25 years.

Costa has acted as in-house legal counsel for peak employer organisations, has practised as a Senior Associate in the workplace relations departments of reputable mid-tier law firms and provided consultancy services across the entire spectrum of workplace relations issues. Costa has acted in numerous unfair dismissal matters, general protections applications, anti-bullying proceedings as well as discrimination, equal opportunity and sexual harassment disputes.

Costa has conducted complex workplace investigations into a variety of workplace disputes and complaints and has prepared comprehensive investigation reports. He has successfully mediated workplace disputes and has direct experience working within the human resources area of an international educational institution. His skills and years of experience in a diverse range of environments place Costa in a unique position to provide his services in an effective and efficient manner.

Costa holds a Baccalaureus Procuration is Law Degree. He was admitted to practise as an Attorney of the Supreme Court of South Africa in 1993 and as a Barrister and Solicitor of the Supreme Court of Victoria in 2002.

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