What’s new in employment law and industrial relations in 2023?

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

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 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.

OR

1 August 2023 – SBE

·          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 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.

·          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.

·           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.

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

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

·           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.

·      will automatically expire from 6 December 2023;

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

·          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.

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.