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Important Changes to the Fair Work Act

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By Ben Schefe

On 6 December 2022, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 became law in Australia. You may also be aware that on 12 December 2022 the Anti‑Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 became law in Australia. This legislation has made a significant change to Australia’s Industrial Relations system in a number of areas.

At a high level, changes were made in respect to the following topics, with the focus of this article to be on the first four topics:

  1. Flexible work arrangements;
  2. Prohibiting pay secrecy, and job advertisements in breach of the Act;
  3. Prohibiting sexual harassment;
  4. Paid family and domestic violence leave;
  5. Fixed term contracts;
  6. Enterprise agreements and enterprise bargaining;
  7. Changes to the small claims process and abolition of other commissions.

Flexible work arrangements

As of 6 June 2023, the amount of eligible employees that can make a request for a flexible work arrangement expands to include employees who are: pregnant, caring for family members over 55 or are experience domestic violence. Further, employers need to undertake a more rigorous process before being able to refuse a flexible work arrangement, including considering the consequences of refusal on the employee and proposing other changes, in writing, that the employer is willing to make to accommodate the employee. The Fair Work Commission is also now empowered to deal with disputes in respect to this issue.

Prohibiting pay secrecy, and job advertisements in breach of the Act

As of 7 December 2022, employees are able to share information regarding their pay and employment terms and conditions with other people, should they wish, and employers are not able to take an adverse action against the employee should they decide to share that information. However, employees cannot be forced to share this information if they do not want to. This section covers all employees except those who entered into a contract of employment containing a pay secrecy clause before 7 December 2022.  In respect to any exempted employees, the protection will apply from the time that their contract is amended by mutual agreement (eg when the employee’s pay is increased).

Further, as of 7 June 2023, it is a civil offence to include a term in an employment contract that attempts to prevent the employee from discussing their remuneration.

Related to the above, as of 7 January 2023, any pay rates contained in job advertisements must not contravene the Fair Work Act or a fair work instrument (eg a modern award). This prohibition is indeed common sense, but has been included to specifically protect migrant workers who may not be aware of their workplace rights and the relevant laws.

Prohibiting Sexual Harassment

As of 6 March 2023, there is a strict prohibition against sexual harassment in connection with work, and applications can be made to the Commission in respect to such conduct from that date. Further protections are also provided by the Act in respect to intersex status, gender identity and breastfeeding, which all become protected attributes. Although there is already on obligation on employers under work health and safety legislation to provide workers with a safe workplace, including being free from sexual harassment, the Act provides for a positive duty for employers to prevent sexual harassment, harassment on the grounds of sex, hostile workplace environments, and victimisation, in the workplace.

Paid family and domestic violence leave

From the following dates in 2023, employees will be able to access 10 days of paid family and domestic violence leave within a 12-month period, including casual and part-time employees

  1. For employees of non small business employers – 1 February 2023;
  2. For employee of small business employers – 1 August 2023

If you would like more information about family and domestic violence leave, please see the following link – https://www.fairwork.gov.au/leave/family-and-domestic-violence-leave

Next Steps

  1. Review your current contracts to ensure that they are compliant with the new changes, including in respect to prohibiting pay secrecy;
  2. Update your policies and procedures to take into account the new policies;
  3. Conduct internal training to educate your staff regarding their obligations.

Need some more advice in respect to your employment contracts or dealing with employees generally?

If you would like further advice on employment contracts or dealing with your employees generally, MDL’s Employment Law team can help.

To discuss your situation, contact McCarthy Durie Lawyers on 07 3370 5100 or fill out the contact form below.

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