2023 Introduces Important Employment Law Changes
A raft of changes to Federal employment laws commenced in December last year in response to the current government’s push for social reform.
Below is a summary of the main changes that will be of interest to all businesses.
Fair Work Information Statement (FWIS)
The Fair Work Ombudsman has issued an updated FWIS, which contains information about the National Employment Standards and conditions of employment. A copy of the FWIS must be given to employees when they commence employment. The updated FWIS for permanent and casual employees can be accessed here.
Pay Secrecy
Legislation under the Fair Work Act is now in place prohibiting pay secrecy as follows:
Employees now have the right to share (or not share) information about their pay and employment terms and conditions; and
Pay secrecy terms in employment contracts and other workplace instruments are prohibited*; and
Job ads with pay rates lower than the legal minimum entitlements that apply to the job are prohibited. Ads seeking pieceworkers must display the rate of pay*
* Transitional arrangements apply to some of the above changes.
This link provides more information - Pay secrecy - Fair Work Ombudsman
Sexual harassment laws strengthened
For a long time, the prohibition of sexual harassment has been covered by anti-discrimination and safety legislation. To strengthen the remedies for sexual harassment, from 6th March, the Fair Work Act will provide additional remedies to prohibit conduct that subjects another person to a workplace environment that is hostile on the grounds of sex. This includes workers and third parties such as volunteers, prospective workers, students, trainees, subcontractors and customers.
Individuals, groups of individuals or their representatives, such as a union, will be able to lodge a complaint with the Fair Work Commission (FWC). The Commission may initiate investigations, issue compliance notices or enforceable undertakings; or seek civil penalties and/or (no cap) compensation to remedy past harm.
These strengthened provisions mean that employers could be held vicariously liable for sexual harassment unless they can prove that they have taken all reasonable steps to prevent the conduct.
Under the legislation, the FWC will be provided with the discretion to dismiss an application made more than 24 months after the relevant contravention (or the last of the contraventions) is alleged to have occurred, consistent with the limitation period under the Sex Discrimination Act, 1984.
Protected employee attributes
The Fair Work Act now has 3 new protected attributes restricting discrimination against employees, breastfeeding, gender identity and intersex status.
The full list of protected attributes under this Act can be found here
Employers are reminded that antidiscrimination terms occur in numerous pieces of legislation at Federal and State level.
Paid family & domestic violence (FDV) leave
The National Employment Standards under the Fair Work Act have been amended to include an additional 10 days paid leave for permanent and casual workers who are involved with family or domestic violence. Previously FDV leave was unpaid and only applied to staff covered under Modern Awards.
Paid FDV will commence from 1st February for most employers and from 1st August 2023 for small business employers with 15 or fewer headcount. The full entitlement of 10 days commences from the first day of employment but does not carry forward from year to year.
Find out more at New paid family and domestic violence leave
Enterprise bargaining
Several amendments to enterprise bargaining will be phased in over 2023. The most significant, commencing from 6th June, will be the ability for unions to re-establish multi -employer sectoral bargaining i.e. roping employers into union-led, multi-employer agreements.
While the legislation contains some protections for those with an existing agreement and small businesses with 20 or fewer headcount, the ability for unions to recommence sectoral bargaining through multiple avenues could have significant downsides for employers who prefer to establish their own workforce terms and conditions. The legislation also requires union representatives to approve the agreement prior to employees voting.
Other changes include
New powers to enable the FWC to correct errors in agreements
Additional requirements before expired agreements can be terminated
FWC ability to prevent the reduction of employee entitlements after an agreement has been terminated
Simplifying the pre-approval bargaining process
Changing the Better Off Overall Test to a global assessment that involves consideration of future employees
Termination of ‘zombie’ agreements made prior to 1st January 2010.
More information can be found on https://www.fairwork.gov.au/newsroom/news/secure-jobs-better-pay/enterprise-agreements-and-enterprise-bargaining
Parental leave extended
From 1st July Parental Leave and Dad and Partner leave entitlements will combine up to a single payment of 20 weeks at the rate of the national minimum wage, enabling both parents to take parental leave at the same time. From 1 July 2024 to 1 July 2026 this entitlement will increase further by 2 weeks per annum up to a total of 26 weeks. A threshold limit of $156,647 for individuals and $350,000 for families will apply.
Either parent will be able to claim parental leave and two parents will be able to take leave at the same time. Parental Leave Pay will be allowed to be taken in blocks as small as one day at a time, with periods of work in between within 2 years of the date of birth.
The October budget announcement provides an explanation - https://www.servicesaustralia.gov.au/sites/default/files/2022-10/budget-2022-23-october-10.pdf
Flexible working arrangements
Employees have the right under the FW Act to request flexible working arrangements in some circumstances. From 6th June, additional consultation requirements will apply. The employer must also provide more detail around the reasons should a flexible working request be refused.
The legislation also paves the way for employees to lodge an appeal of the decision with the Fair Work Commission who will be able to arbitrate an outcome if agreement cannot be reached.
Minimum wage increase
The minimum wage under awards is scheduled to increase on 1st July. The magnitude of the increase will be announced after Fair Work Commission hearings conclude, usually around the middle of June.
Superannuation increase
On 1st July, the minimum superannuation guarantee percentage will increase from 10.5 % to 11% per annum.
Maximum term contracts
With limited exceptions, employers will be prohibited from entering into a fixed-term or maximum-term contract:
spanning for a period of two or more years (inclusive of extensions); or
that may be extended more than once (even if the period of the contract is not more than two years in duration); or
where the employee has previously been engaged on two consecutive contracts for the same or substantially similar work.
The prohibition will apply to a contract entered into before 6th December 2023 if an employer entered into a subsequent contract after that initial contract ended, in circumstances which meet the 'consecutive contracts' restriction.
From 6th December, employers will need to provide employees on a fixed term contract with a ‘Fixed Term Contract Information Statement’.
Other changes being considered
Discussions are taking place considering further reforms which could include:
Introducing national legislation to criminalise wage-theft. Legislation already exists in several states.
A requirement for the same rate of pay applying to labour hire employees and current employees.
Legislation to strengthen wage support for ‘gig’ workers.
Further changes to the definition of casual worker so enable clearer pathways to transition to permanent work.
What do employers need to do now?
Ensure your managers and staff are familiar with the new changes and implementation dates.
Review and update employment contracts, policies and processes to reflect the changes.
Consider using a OHS risk management and control framework to strengthen sexual harassment prevention and action policies and processes. Implement preventative measures such as staff induction and regular awareness training for all staff. Encourage a ‘speak up’ culture and proactively collect and monitor organisational data i.e. through confidential surveys and exit interviews.
Ensure managers responsible for responding and supporting matters involving discrimination, sexual harassment and domestic violence have adequate skills and training.
Remove pay secrecy clauses from employment contracts and enterprise agreements. Ensure managers are aware that employees can not be adversely treated should they enquire about their pay and conditions. Ensure clear guidelines around how salaries are assessed and reviewed.
Develop an enterprise bargaining strategy for your organisation if you feel your organisation may be vulnerable to a multi-employer bargaining application. Employers with an expired agreement in place should carefully consider negotiating a replacement agreement prior to 6th June.
Ensure staff policies and organisational procedures are in place to support staff who are involved in domestic violence. Ensure strict confidentiality around reporting, management and record keeping processes in your organisation. Include domestic violence and response in your risk management and DV awareness and response in staff training schedules.
Review projects and staff employed under fixed term arrangements. Update employment arrangements where needed.