Industrial Relations Reform: Significant changes to the Fair Work Act impact your current employer obligations
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 was passed by the Federal Parliament on 2 December 2022 and was formally accepted by the Governor-General on 6 December 2022.
The new laws will impact all Australian workplaces, with some parts requiring urgent attention from employers. These include:
Pay secrecy has ended - Staff can now choose to discuss their pay with other staff. Pay secrecy clauses in existing contracts have no effect as of 7 December 2022, and employers can no longer offer new contracts containing pay secrecy clauses. Employers must update their employment agreements and contract templates immediately to reflect these changes.
FWC has more bargaining power – From 7 December 2022, if the Fair Work Commission (FWC) considers that a party is not engaging in good faith enterprise bargaining, it can now issue a bargaining order.
Terminating an EBA after the nominal expiry date has new parameters - From 7 December 2022, the FWC is has more power to prevent employers from terminating an enterprise agreement as a bargaining tactic, and to support an employee or union to terminate an unfair enterprise agreement. Employers should review their EBAs and consider their renegotiation options.
Job ads cannot offer less than the minimum wage - From 7 December 2022, it is unlawful for an employer to advertise a pay rate below the minimum rate of pay, including the minimum rate of pay under an award or enterprise agreement.
FWC can make equal remuneration orders - From 7 December 2022, the FWC must consider gender inequality when reviewing modern awards, and it can initiate orders to combat wage inequality without receiving an application. In addition, EBAs can now contain measures intended to achieve equality for employees with particular attributes.
Protected attributes have been expanded - From 7 December 2022, the list of attributes protected from discrimination now includes gender identity, intersex status and breastfeeding. Employers should take a proactive approach to preventing workplace discrimination.
Workplace sexual harassment will be further prohibited through the FWC - From 7 March 2023, a person subject to workplace sexual harassment will be able to seek compensation and penalties through the FWC. This is in addition to the existing right to seek a “stop sexual harassment order” and will not affect existing rights to make claims under other legislation. Employers should take a proactive approach to preventing workplace sexual harassment by reviewing their work, health and safety control measures and conducting a review of the workplace culture.
There are a number of further changes that will take effect at later dates in 2023. These relate to:
Limiting the use of fixed-term contracts
Expanding the grounds for requesting flexible working arrangements
Expanding multi-enterprise bargaining provisions
Expanding the application of the better off overall test (BOOT)
Simplifying the approval process of employment agreements
Arbitrating intractable bargaining disputes
Ending enterprise agreements that pre-date the Fair Work Act
Increasing the cap on small claims
Legislative reform puts you at risk
It’s critical to keep your policies, processes, employment agreements, EBAs and payroll systems up to date with current legislation. Honest, well-meaning Directors or Senior Executives can face the unwelcome surprise of penalties or legal expenses simply because they have been unaware of legislative changes affecting their workplace.
WorkPlacePLUS can help ensure you are meeting your employment obligations. For more information, please contact us today.