The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Act) received Royal Assent on 6 December 2022. The Act amends workplace relations laws relating to bargaining, job security, gender equality, compliance and enforcement, workplace conditions and protections and workplace relations institutions.
Employers must be aware of and take necessary actions to comply with these amendments. This article will focus on the following amendments which have already taken effect and are of particular interest to our clients:
- Pay Secrecy;
- Job Ads;
- Protected Attributes; and
- Sexual Harassment.
We will continue to update you on these amendments as well as those that will be taking effect shortly (see below table) in future articles. In the meantime, fact sheets covering all amendments can be found on the Department of Employment and Workplace Relations’ website. Alternatively, for more information on the amendments, contact us to discuss.
Pay Secrecy
The Fair Work Act 2009 (Cth) (FW Act) now includes provisions that give employees and future employees new workplace rights in regard to pay secrecy. Section 333B states that employees have the right to disclose or not disclose information about their remuneration and any terms and conditions of their employment that are reasonably necessary to determine remuneration outcomes, such as their hours of work. They also have the right to ask other employees about the same.
These rights apply to both existing and new employment contracts, as long as the existing contract (i.e. contract entered into before 7 December 2022 which has not since been varied) does not include pay secrecy terms that are inconsistent with these rights.
Pay secrecy clauses included in new employment contracts from 7 December 2022 will have no effect, and from 7 June 2023 will attract penalties.
Pay secrecy clauses in current employment contracts entered into before 7 December 2022 will continue to operate, until those contracts are varied, at which time they will have no effect, and from 7 June 2023 will attract penalties.
Employers cannot take adverse action against an existing or future employee for exercising these rights (or to prevent them from exercising these rights) and can face penalties for breaching these provisions.
Job Ads
From 7 January 2023, employers should ensure their new or existing job ads do not advertise pay rates that would breach the FW Act or applicable award or enterprise agreement. In other words, the rate advertised must not be less than the minimum entitlement that applies.
Employers advertising piecework will also be required to state if a periodic pay rate that applies as well as the rate.
Protected Attributes
From 7 December 2022, breastfeeding, gender identity, and intersex status are new protected attributes under the anti-discrimination provisions of the FW Act. This means employers are prohibited from taking adverse action against current or future employees because of these attributes from this date.
Sexual Harassment
From 6 March 2023, the FW Act will expressly prohibit sexual harassment in connection with work. This protection will apply to all workers, future workers and anyone conducting a business or undertaking.
Employers will be held vicariously liable for sexual harassment unless they can demonstrate that they have taken all reasonable steps to prevent the conduct.
Employees will be able to make an application to the Fair Work Commission (FWC) for a stop-sexual harassment order and/or to deal with the dispute. The FWC has expanded powers, it will first attempt to conciliate the dispute and if unsuccessful, the FWC can arbitrate the dispute with the consent of both parties. If consent is not given by either party, the applicant will then have 60 days to make an application to the Federal Court.
FWO Powers
The Fair Work Ombudsman has the power to take enforcement action, including fines or starting court proceedings, for alleged breaches of these new provisions.
Timetable of Key Amendments
7 December 2022
- Changing the objectives in the Fair Work Act (FW Act) to
- include promoting job security and gender equality
- Prohibiting pay secrecy
- New protected attributes under the FW Act inc. breastfeeding, gender identity and intersex status
- Sunsetting of ‘zombie’ agreements
- FWC has powers to correct errors in enterprise agreements
- Changes to how bargaining can be started through the FWC
- Updates to rules for agreements to allow the FWC to terminate an agreement after its nominal expiry date
7 January 2023
- Job advertisements can’t include pay rates that would breach the FW Act, Award or enterprise agreement
6 March 2023
- Prohibition of sexual harassment in the workplace
- Creation of expert panels at the FWC to focus on pay equity
6 June 2023
- Changes to agreement making
- Increased access to multiemployer bargaining through single-interest bargaining, supported bargaining and cooperative bargaining
- Changes to extending unpaid parental leave, including giving the FWC the power to deal with disputes
- More employees being able to access flexible working arrangements
1 July 2023
- Increase in monetary cap for recovering unpaid entitlements via the small claims process
6 December 2023
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What should employers do now?
To ensure compliance, employers should:
- review their template employment contracts to ensure they don’t prevent employees from discussing their pay and if they do, amend so that they are compliant with the new provisions before issuing any new contracts;
- review their current policies and procedures to ensure they meet their obligations under the new provisions;
- review any existing or new job ads to ensure they include the correct pay rate and comply with the new provisions;
- take all reasonable steps to prevent sexual harassment from occurring. This includes having an appropriate workplace policy in place, providing training to workers to prevent or address sexual harassment and promptly investigating and addressing complaints of any such conduct; and
- keep an eye out for our future articles on further amendments.
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Contact Us
Industry Legal Group can provide clients with information and advice on workplace relations and employment law matters. Please contact Industry Legal Group on 1300 736 435 or mail@industrylegalgroup.com.au if you have any question relating to this article or to discuss any issues that arise in your business.
This article is intended for information purposes only and should not be regarded as legal advice. Please contact Industry Legal Group for advice.
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January 2023
