At a glance
- On 6 December 2022, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act (Cth) (Act) received Royal Assent. The Act enforces several amendments to the Fair Work Act 2009 (Cth) (FW Act).
- Some of the key changes under the Act and when they are expected to come into effect are set out below.
What are the key changes:
- A prohibition against:
- Sexual harassment committed in “connection with work” (in effect from 6 March 2023);
- ‘Pay secrecy’: employees now have a workplace right to share details of their remuneration (e.g. wages, bonuses, allowances) to others and to ask others about their own remuneration. The prohibition on pay secrecy has been in effect from 7 December 2022, and any existing employment contracts which contain clauses that are inconsistent with that prohibition are no longer enforceable. Civil penalties may be imposed for contracts which purport to restrict employees from discussing their remuneration from 7 June 2023. Employers may not take “adverse action” against an employee (e.g. subjecting them to disciplinary action) for discussing their remuneration;
- Job advertisements which include salaries that are below the minimum wage (in effect from 7 January 2023).
- Fixed term contracts cannot be used for more than 2 years or extended more than once (in effect from 6 December 2023 or an earlier date to be fixed by proclamation);
- Expanding the circumstances for making flexible work arrangements to include family and domestic violence, being over 55 years of age and caring for a family member (in effect 6 June 2023);
- The Fair Work Commission (Commission) will be able to arbitrate the flexible work arrangement disputes, and order pay increases for workers in low-paid, female-dominated industries based on equal remuneration considerations (in effect 6 June 2023);
- Expanding the scope for multi-employer enterprise bargaining and making the Better Off Overall Test more flexible and the Commission has expanded powers to arbitrate intractable disputes (in effect 6 June 2023 or an earlier date to be fixed by proclamation);
- Creation of a new dispute resolution process in the Commission (like the existing general protections dispute process) for workplace sexual harassment claims that can then be referred to a Court if not resolved in the Commission (in effect 6 March 2023).
NES entitlement changes
NES entitlement changes have come into force from 1 February 2023 (or 1 August 2023 for small business employers). This means that all employees (including casual and part time employees) are entitled to 10 days paid family and domestic violence leave per year, up from five, provided they meet the eligibility criteria. Employees are entitled to the full 10 days of leave upfront, meaning they will not have to accumulate it over time. If it is not used, it does not accrue from year to year. Employers must take steps to ensure that information concerning notice or evidence given by an employee for the purposes of taking family and domestic violence leave is treated, as far as reasonably practicable, confidentially and that leave is not specifically identifiable as family and domestic violence leave on payslips.
What to do now?
Employers will need to start thinking about requests for paid family and domestic violence leave including implementing payroll adjustment, compliance with confidentiality obligations and ensuring awareness as required within the organisation of the increased entitlement.
Employers should also review the extent of their fixed term contract arrangements, mechanisms for dealing with flexible work requests and their policies and responses to harassment.
Employers should remove or adjust confidentiality obligations in employment contracts for new employees to ensure there is no contravention of the pay secrecy prohibition and be aware that where contractual clauses restricting employees from discussing their remuneration are currently in place, these are no longer enforceable.
More to explore
