On 6 December 2022, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (the Act) was enacted. The Act amends and introduces a number of workplace laws, and introduces new objectives to promote job security and promote gender equality. Some of the key changes are as follows:
Fixed Term Employment Contracts
The Act seeks to limit the use of fixed-term contracts. Employers can now no longer employ an employee for a fixed term that is for more than 2 years (including extensions), may be extended more than once, or is a new contract for the same (or similar) role as previous contracts.
From 6 June 2023, there will be greater scope for employees to request flexible work arrangements. There are new obligations on employers before they can refuse a request and limits on reasons for why a request can be refused. The Fair Work Commission now has power to arbitrate disputes in relation to flexible work arrangement applications.
The inclusion of additional protected attributes of “breastfeeding”, “gender identity” and “intersex status” in the anti-discrimination provisions of the Fair Work Act expands upon the matters in which employers will be prohibited from taking adverse action against an employee.
Respect at Work
From 6 March 2023, the Act introduces a prohibition of sexual harassment in relation to work, with persons or companies being vicariously liable for the acts of their employees and/or agents unless they can prove that they took all reasonable steps to prevent the harassment. The protection against sexual harassment in the workplace will apply to employees, contractors, volunteers, work experience students, future workers and anyone conducting a business. There are also broader powers for the Fair Work Commission to deal with sexual harassment disputes.
Restricting Pay Secrecy
The Act prohibits and invalidates the use of pay secrecy clauses in employment agreements entered into from 7 December 2022, with penalties for non-compliance. This change in the Act provides employees or future employees with a new workplace right to share or not share information about their pay or other terms and conditions of their employment.
Unpaid Parental Leave
From 6 June 2023, there will be additional obligations on employers regarding requests for extensions of unpaid parental leave. Employers must now give reasons for any refusal. The Fair Work Commission will also have extended powers to deal with disputes about extended parental leave.
National Employment Standards
Parliament has also passed the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 allowing all employees to be entitled to 10 days of paid family and domestic violence leave each year. This increases the entitlement from 5 days to 10 days per calendar year and extends to permanent, part-time and casual employees. For employees employed by a small business, the entitlement will come into effect from 1 August 2023. For all other employees, the entitlement will come into effect from 1 February 2023.
How should employers respond?
- Employers should review employment contracts and templates and ensure the relevant changes are made to their template contracts to ensure compliance with the Act;
- Review existing processes for regarding handling requests for flexible work arrangements, unpaid parental leave, paid family and domestic violence leave and make relevant changes;
- Update workplace policies and procedures and consider ongoing workplace training regarding sexual harassment and discrimination; and
- Ensure any necessary changes are made to payroll systems to account for the increase in family and domestic violence leave each year.
We have a dedicated team of commercial lawyers who are experienced in providing advice on employment law, drafting and advising on employment contracts and acting in employment disputes. If you would like assistance, please contact our principal lawyers Dean Groundwater Anika Fleet or Matthew Coulter by email or phone 9525 8688. We also invite you to download our free Essential Business eGuide.