What does the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 mean for your business?
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Secure Jobs, Better Pay Act) received royal assent on 6 December 2022, introducing a number of amendments to the Fair Work Act 2009 (Cth) (Fair Work Act).
The key amendments contained in the Secure Jobs, Better Pay Act relate to bargaining, job security, gender equality, compliance and enforcement, workplace conditions and protections. Although parts of these legislative amendments came into effect the day after the royal assent in 2022, other parts will come into effect at various times throughout 2023.
This article provides a summary of the key amendments of particular interest to small/medium businesses. The key amendments are noted below:
- pay secrecy;
- flexible working arrangements;
- fixed-term contracts; and
- sexual harassment and anti-discrimination.
Pay Secrecy Clauses
Employees will have a new workplace right to choose whether or not to disclose information about their pay and their employment terms and conditions that may determine their pay outcomes. Employees will also have a workplace right to ask other employees (with the same or a different employer) about their pay and other related terms and conditions of their employment.
These amendments came into effect on 7 December 2022.
What this means for your business?
These changes create new workplace rights and employers are prohibited from taking adverse action against existing or future employees. This means that if an employee is subject to adverse action because the employee disclosed their remuneration, the employee can bring a general protections claims against the employer in the Fair Work Commission.
In addition, the amendment also prohibits employers from including pay secrecy clauses in employment contracts after the commencement of the legislation.
Right to request flexible working arrangements
The process employers must follow on receiving an employee’s request for flexible work arrangements has become more onerous, since employers must, within 21 days of receiving the request:
- approve the request; or
- have discussed and agreed with the employee changes to the employee’s requested work arrangement; or
- have discussed the proposed arrangement with the employee and must set out the reasonable business grounds on which they refuse to grant the request.
There is also an increased access to dispute resolution through the Fair Work Commission for employees, in circumstances where a dispute regarding a flexible working request cannot be resolved.
These amendments will come into effect on 6 June 2023.
What this means for your business?
The Secure Jobs, Better Pay Act has been amended to strengthen the right to request flexible working arrangements. Employees can negotiate workplace flexibilities and can bring a dispute to the Fair Work Commission if the employer refuses their request or fails to respond within 21 days. The Fair Work Commission also has the power to make a number of orders when arbitrating the dispute.
We encourage employers to consider reviewing their current flexible working policies ensuring that they have procedures and guidelines for considering and providing responses within 21 days.
Fixed-term contracts
With limited exceptions, employers will no longer be able to employ an employee on a fixed-term contract that:
- exceeds two years (including extensions);
- contains the right to extend or renew the contract more than once; or
- is a new contract:
- where the employee has previously been engaged on two consecutive contracts for the same or substantially similar work;
- where there may be substantial continuity of the employment relationship between the end of the previous contract and the new contract. By way of an example, a contract that finishes at the end of one semester and another contract that starts at the beginning of the next semester.
These changes will come into effect on 6 December 2023. Though, note that the prohibition applies to contracts entered into before 6 December 2023, if an employer entered into a subsequent contract after the initial contract ended.
What this means for your business?
From 6 December 2023, employers will be required to give employees engaged on a fixed-term contract a ‘Fixed-Term Contract Information Statement’.
The Fair Work Commission will have the power to hear any disputes arising as a result of the fixed-term contract. Employers will have the onus to establish that their fixed-term contracts are not in breach of the legislative requirements.
Sexual harassment and anti-discrimination
The Secure Jobs, Better Pay Act inserted new provisions into the Fair Work Act making it unlawful for one person to sexually harass another person in connection with work.
This prohibition extends to all ‘workers’, including employees, contractors, subcontractors, outworkers, apprentices, trainees, students gaining work experience, or volunteers, as well as prospective workers and third parties such as clients and customers.
Under the Fair Work Act, workers, prospective workers and persons conducting a business or undertaking will each be able to seek remedies.
Under these changes, the Fair Work Commission will have powers to:
- make stop sexual harassment orders to protect applicants from future harm; and
- deal with the dispute under a new dispute ordering compensation to remedy past harm through mediation or conciliation. If the dispute cannot be resolved, the parties can have the matter arbitrated in the Fair Work Commission. Or the worker can proceed to make a claim in the Federal Court or the Federal Circuit and Family Court of Australia.
These changes relating to sexual harassment will come into effect on 6 March 2023.
In addition, ‘breastfeeding’, ‘gender identity’ and ‘intersex status’ definitions will be included into the anti-discrimination provisions of the Fair Work Act. These attributes are now protected attributes under the anti-discrimination provisions of the Fair Work Act.
These changes relating to anti-discrimination came into effect on 7 December 2022.
What this means for your business?
We encourage employers to consider applying the work health and safety framework to identify what measures they have in place to prevent sexual harassment in the workplace.
National Employment & Labour Lawyers have a dedicated team who can assist you with any Fair Work Legislation Amendment queries. We offer a free and confidential initial consultation, where we can discuss your situation and provide you with tailored advice. Get in touch with us today!
Disclaimer: The information contained in this article is of a general nature and is not intended to be relied upon as, nor to be a substitute for, specific legal or professional advice.
