The Government has implemented changes to Australia’s IR laws. We previously advised clients of the changes to enterprise bargaining in December 2022.
We now set out below a summary of what we think are the most important changes to the Fair Work Act 2009 (The “Act”) for employers:
Prohibiting Pay Secrecy – From 7 December 2022, employees have a workplace right to disclose or not disclose their remuneration and terms and conditions of their employment to others, including other employees and also to ask another employee about their remuneration and terms of employment. It is important that employers do not take any adverse action against employees in such cases, as any action may invoke the civil penalty provisions of the Act. From 7 June 2023, it will be an offence to include a pay secrecy clause in employment contracts.
Prohibiting Sexual Harassment –From 6 March 2023, the Act includes a prohibition on sexual harassment of workers and others. This is additional to the prohibition on SH in the Sex Discrimination Act. Employers may be held vicariously liable for acts committed by an employee. To avoid liability, employers must be able to demonstrate that they took "all reasonable steps” to prevent the sexual harassment.
This means that employers can not simply rely on having a sexual harassment policy in place to avoid liability but instead may need to look at additional measures akin to their work, health and safety obligations, to provide a safe system of work. Governance frameworks, identification of risk factors and steps to control those risks and implementation plans, supported by measurable outputs may be considered.
Flexible Working Arrangements –From 6 June 2023, the circumstances to request FWAs are expanded to include employees or members of their immediate family or household, who experience family or domestic violence and pregnant employees. Employers faced with an application for FWAs have stricter and comprehensive obligations placed on them when considering a request, including providing a written response within time limits that satisfy certain specific requirements, should the request be refused. There is now an obligation of employers to try and resolve any dispute by discussion and if that fails, the FWC is empowered to deal with the dispute by conciliation and arbitration.
Limitation on Fixed Term Contracts – From 7 December 2022, new fixed term and maximum term contracts are limited to 2 years duration and the limitation applies to a new contract if the previous contract was for a fixed term and the employee was performing the same or similar work as required under the new contract. Note that this change includes maximum terms contracts, where the employment may be terminated during the term. Employers are also required to provide employees with a Fixed Term Contract Information Statement (published on the FWO site).
If you have any questions, contact Lou McPherson on lou@aelawyers.com.au or call 024952 9554 or visit Fairworkhelpforemployers.com