Federal Industrial Relations to Lift Wages, Improve Job Security and Close the Gender Pay Gap

As 2023 came to an end, the Federal Government enacted extensive reforms to industrial relations by way of the Secure Jobs, Better Pay Bill. These changes are some of the most significant amendments to the Fair Work Act (“the Act”) since its commencement in 2009. Different areas of reform will commence on different dates, with the first changes having already commenced on 7 December 2022.

The most significant changes to be aware of are listed below, together with their commencement date:

Prohibiting Pay Secrecy

Many current employment contracts contain clauses requiring employees to keep their remuneration confidential. Such clauses are now prohibited.

Employees now have a workplace right to share information about their pay and their employment terms and conditions that would be needed to work out their pay (i.e. their hours of work) if they choose to. Employees are also free to ask other employees about that information, but an employee is not forced to disclose the information if they do not want to. An employer can’t take adverse action against an employee for exercising their right to tell someone their salary.

From 7 December 2022, any terms in existing contracts concerning pay secrecy will have no effect. Further, any new contract entered into that contains a pay secrecy clause will contravene the Act.

Job Advertisements

Penalties will be applied to employers who advertise employment opportunities listing a rate of pay that would contravene the Act or an award. From 7 January 2023, if you plan on advertising a rate of pay with a job listing, be sure to seek advice on the applicable salary rate.

‘Zombie’ Agreements

Currently, enterprise agreements made prior to the introduction of the Fair Work Act continue in operation after their nominal expiry date until they are terminated by the Fair Work Commission or replaced with a new enterprise agreement. Such agreements are commonly referred to as ‘zombie’ agreements.

If your workplace has such an agreement, employees must be advised in writing (before 7 June 2023) that the agreement will be terminating. The new laws provide for the automatic termination of these ‘zombie’ agreements on 7 December 2023.

New Protected Attributes

From 7 December 2022, an employer must not take adverse action against an employee, or prospective employee, because of the employee’s gender identity, intersex status, or because the employee is breastfeeding. Adverse action includes refusing to employ the person, dismissing the employee, altering an employee’s position, or discriminating between the employee and other employees.

This makes the Act consistent with other Commonwealth antidiscrimination laws that already outlaw such behaviour.

Sexual Harassment

To complement other legislative amendments that already ban sexual harassment, a new provision has been inserted into the Act making it unlawful for a person to sexually harass another in the workplace. This includes circumstances where the harassment involves a PCBU, an employee, or a prospective employee.

Where a person alleges they have been sexually harassed, they may apply to the Fair Work Commission to deal with the dispute. Also, a vicarious liability provision means that a business owner may be liable for the acts of sexual harassment committed by their employees.

Businesses should ensure they have adequate policies regarding sexual harassment and that they conduct training with their employees on expected standards of behaviour before these provisions come into effect on 6 March 2023.

Flexible Working Arrangements

Currently an employee in certain circumstances can request in writing to have changes to their working arrangements. The employer then has 21 days in which to respond to the request, which may be refused on reasonable business grounds. The new laws, which commence 6 June 2023, expand the types of employees that can request flexible working arrangements to now include pregnant employees and employees experiencing domestic violence. An employer will now also be required to discuss the request with the employee. Finally, if the issue cannot be resolved in the workplace, the Fair Work Commission will have jurisdiction to hear any disputes.

Fixed Term Contracts

From 6 December 2023, employers will no longer be able to employ a person on a fixed term contract that:

• Is for 2 or more years (including extensions)

• May be extended more than once, or

• Is a new contract:

• That is for the same or a substantially similar role as previous contracts

• With substantial continuity of the employment relationship between the end of the previous contract and the new contract, and either:

• The total period of the contracts is 2 or more years,

• The new contract can be renewed or extended, or

• A previous contract was extended.

Some exceptions apply, including where the fixed term contract is for a training arrangement (i.e. apprenticeship). Finally, from 6 December 2023, employers will have to give employees they’re engaging on new fixed term contracts a Fixed Term Contract Information Statement.

Given the breadth of changes to the Act it is understandable if employers need clarification on their responsibilities to their employees. Any queries can be directed to the MTA Workplace Relations Team on free to contact the MTA Workplace Relations Team on 8291 2000 or wr@mtasant.com.au.