Background

A lot has been said and written about recent and upcoming changes to the Fair Work Act and other legislation.  Because of the number and, in some cases, complexity as to implementation date and rules of application, it can be hard to track what’s happening and when so here is an easy guide to help you mark your industrial relations calendar with the actions you need to take to help your organisation comply with its industrial relations obligations in 2023 and beyond:

 

Date of change

Change

Action for employers

7 December 2022 Pay secrecy provisions in employment contracts are, from this date, prohibited and the right to disclose pay is now a “workplace right”.

Pay secrecy clauses in existing contracts entered into before 7 December 2022 will continue to be permissible and will continue to apply.

Any new contracts entered into between 7 December 2022 and 7 June 2023 which contain a pay secrecy provision will not offend the prohibition on these clauses but the provision will be ineffective/unenforceable.

From 7 June 2023, it will be an offence under the Fair Work Act to offer a prospective employee a contract with such a clause.

 

 

Review template contracts and ensure that any provisions requiring employees to keep their pay confidential are removed.

Review and update any other documents (e.g. confidentiality deeds, policies, handbooks, induction training information, etc) which require employees to keep their pay confidential.

13 December 2022 Sexual harassment – from this date, employers have a positive duty to, as far as possible, take reasonable and proportionate measures to eliminate unlawful sex discrimination, harassment and victimisation in the workplace.

The Australian Human Rights Commission is now empowered to proactively investigate workplaces and recommend prosecutions of its own volition (i.e. even where no complaint has been received).

Ensure sexual harassment and discrimination policies are robustly drafted and support the employer’s discharge of this duty.

Ensure employees are trained in the policy, including how to identify problematic conduct and complaints handling processes.

Ensure that complaints-handling procedures are updated and adequately respond to complaints of sexual harassment or sex discrimination.

Consider including sexual harassment and sex discrimination reporting as a regular Board agenda item.

 

 

1 February 2023 – Non-Small Business Employers (SBE)

OR

1 August 2023 – SBE

Paid Family and Domestic Violence Leave – employees will have access to 10 days’ paid family and domestic violence leave each year:

·          applies to all employees (including casuals and Award-free employees);

·          is available from day 1 of employment;

·          a fresh 10 days is granted on each anniversary of commencement (or 1 February for existing employees at that date);

·          not cumulative (i.e. use it or lose it each year); and

·          is not paid out on termination of employment.

Update payroll system to account for the accrual and taking of this leave for all employees annually.

Update leave policies.

Note prohibition on including details of the taking of this leave on payslips.

Ensure that payroll and HR staff are trained appropriately.

Ensure that staff are made aware of this entitlement as soon as possible after it becomes available.

 

 

6 June 2023 Multi-employer bargaining – multi-employer bargaining expanded to allow employees/unions at different workplaces within an industry to join together to collectively bargain for an enterprise agreement (currently this can be done but only at the initiative of employers):

·          majority of employees at each workplace must want multi-employer agreement;

·          must be common interests between employers;

·          must satisfy FWC that it is appropriate taking into account the pay and conditions in the relevant industry;

·          must satisfy FWC that at least some of the employees to be covered by the agreement are represented by a union;

·          employers can be “roped-in” to an existing agreement.

 

 

No immediate action required
6 June 2023 Flexible work arrangements – expands those who can request flexible work arrangements to those who:

·           are pregnant; or

·           are experiencing family and domestic violence.

Employers must discuss requests with employees and provide written reasons for any refusal.

A new dispute resolution process will be in place for employees who wish to challenge a denial of their request for flexibility.

 

 

Ensure that any relevant policies, including parental leave policies, are updated
7 June 2023 Pay secrecy provision cut-off – (as above) from this date, it will be an offence under the Fair Work Act to offer a prospective employee a contract with pay secrecy clause

 

 

Ensure employment contract and other confidentiality documents and policies have been updated.
1 July 2023 Small claims – from this date, the small claims jurisdiction under the Fair Work Act (allowing for the cost-effective and straight-forward recovery by employees of underpaid wages) will be expanded:

·          will apply to underpayments of up to $100,000 (currently $20,000);

·          employer not entitled to representation without permission of the court.

No immediate action required – other than the usual and regular practice of ensuring that:

·           time and wages records are being correctly made and kept;

·           wages are being paid at the correct rate; and

·           leave is accrued and deducted correctly.

 

 

6 December 2023 Termination of “Zombie” enterprise agreements – ends the operation of industrial agreements struck prior to 1 January 2010:

·      will automatically expire from 6 December 2023;

·      employers can seek a maximum 4 year extension of a Zombie agreement from the FWC.

Employers with pre-1 January 2010 enterprise agreements (e.g. collective bargaining agreements, enterprise bargaining agreements, collective agreements, etc) should consider applying for an extension of those agreements or seek to renegotiate a fresh agreement.  Note: this process can take many months so affected employers should commence this process now.

 

 

7 December 2023 Limitation on fixed term contracts

·          prohibition on fixed or maximum term contracts with a total term (including extensions and options) of more than 2 years for the same role;

·          some limited exceptions (e.g. casuals, those engaged to perform a distinct and identifiable task, those over the high-income threshold, in connection with a position funded in whole or part by government funding and under governance rules where those rules specify the length of time that an appointment can be in place).

·          employers must provide employees on fixed/maximum term contracts a Fixed Term Contract Information Statement (yet to be made available by the Fair Work Ombudsman);

·          a breach of this requirement is a civil liability offence.

Review current employment practices to ensure that fixed/maximum term employment contracts are not entered into (unless an exception applies)

Consider whether any existing employment arrangements require review.

Consider ongoing strategy to deal with fixed/maximum term engagements/staffing requirements.

Ensure that engagement procedures for fixed/maximum term employees includes provision of the Fixed Term Contract Information Statement to be provided to the employee on commencement or as soon as practicable after commencement.

 

 

Keeping on top of your industrial relations obligations can be a daunting task at the best of times so don’t hesitate to contact us if we can help you to “drill down” into any of these changes to help you understand or comply with them.

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