What you need to know

The Australian Government has recently made major changes to the fair work legislation which affect a number of existing rules and have introduced new workplace laws (which have various start dates).

Changes that apply now

These changes fall within the following categories: job security, gender equality measures,  enterprise agreements and enterprise bargaining, the abolition of the ABCC (Australian Building and Construction Commission) and the ROC (Registered Organisations Commission), and small claims process.

1. Job security

1.1       New workplace rights on disclosing pay and workplace conditions

With effect from 7 December 2022, employees shall have new workplace rights to:

  • either share or not share information about their pay and employment terms (such as their hours of work)
  • ask other employees (whether with the same or different employer) about their pay and employment term

However, employees cannot be forced to provide such information if they do not want to. These rights remain even after employment ceases.

These rights apply to an employee who enters into a new employment contract on or after 7 December 2022 or existing employees where the contract of employment does not include pay secrecy terms inconsistent with these new rights.

If an employee’s existing employment contract has pay secrecy terms that are inconsistent with the new workplace rights and the contract is changed after the new law comes into force, the new workplace rights apply to the employee.

Impact on your organisation

As an employer, you cannot take adverse action (such as dismissal) against your employee either because of these rights or to prevent these rights from being exercised.

Consequences

  • The Fair Work Ombudsman may take enforcement action including court proceedings for alleged breaches of these provisions
  • You could face penalties for non-compliance

Further information

Visit the Fair Work Ombudsman’s page on pay secrecy

1.2       Prohibiting pay secrecy

New laws
With effect from 7 June 2023, pay secrecy clauses cannot be included in employment contracts.

Impact on your organisation

  • Pay secrecy terms that are inconsistent with these new workplace rights cannot be included in employment contracts or other written agreements entered into on or after 7 June 2023
  • If you use an award or enterprise agreement or employment contract which has a pay secrecy clause, after 7 December 2022, that clause will have no effect and remain unenforceable (regardless of when the agreement was made). This also applies to employment contracts in effect before 7 December 2022 if the contract does not include a pay secrecy clause or includes such a clause and the contract is changed

Consequences

  • The Fair Work Ombudsman may take enforcement action including court proceedings for alleged breaches of these provisions
  • You could face penalties for non-compliance

Further information

1.3       Unlawful job advertisements

With effect from 7 January 2023, job advertisements cannot include pay rates that would breach the Fair Work Act or a fair work instrument (such as an award or enterprise agreement).

Impact on your organisation

  • As an employer, you cannot include pay rates that undercut an employee’s minimum entitlements
  • When advertising pieceworker positions (where an individual is paid according to the quantity of work produced) where the employee would be entitled to a periodic rate of pay (such as an hourly or weekly rate of pay), you must specify the periodic pay rate applicable or state in your ad that a periodic pay rate applies
  • The impact of the timeframe is that regardless of when the ad was originally posted, the requirement applies from 7 January 2023 (which covers ads posted earlier than this date)

Consequences

You could face penalties unless a reasonable excuse for non-compliance is provided.

Further information

Visit the Department of Employment and Workplace Relation’s fact sheet on prohibited job advertisements

2. Gender equality measures

2.1 New protections

With effect from 7 December 2022, there are new protections affecting breastfeeding, gender identity, and intersex status at the workplace.

Impact on your organisation

As an employer, you are prohibited from taking adverse action against current or future employees because of these changes.

Consequences

If an employee experiences adverse action in relation to the above, they can make a complaint through the Fair Work Commission (the FWC) which has the power to start court proceedings for alleged breaches of these new protections

Further information

2.2       Equal remuneration principles and orders

New principle

With effect from 7 December 2022, the Fair Work Act now has a new equal remuneration principle that guides the consideration of equal remuneration and helps the Commission issue pay increases to workers in low-paid, female-dominated industries. The FWC may now make an equal remuneration order on its own accord or on application.

2.3       New workplace sexual harassment laws

New laws

With effect from 6 March 2023, workplace sexual harassment is prohibited under the Fair Work Act. This applies to workers (employees, contractors, work experience students, and volunteers) and people conducting a business or undertaking.

Impact on your organisation

As an employer, you must understand what constitutes workplace harassment, and manage any such harassment at the workplace. This includes mitigation, remedial action, compliance, regular employee training as well as assessment, and monitoring of the issue.

Consequences

  • An individual or company can be liable for sexual harassment committed by an employee (or agent) in connection with work unless they can prove that reasonable steps were taken to prevent such harassment
  • The Commission has expanded powers to address disputes including arbitration and the power to start court proceedings
  • An individual can pursue civil proceedings if the FWC is unable to resolve the dispute
  • An individual who believes they have been sexually harassed at work may make a ‘stop sexual harassment’ application to the Commission

Further information

Read the Fair Work detailed article on new workplace sexual harassment laws

3. Enterprise agreements and enterprise bargaining

 

The process for terminating an enterprise agreement has changed with effect from 7 December 2022. The FWC must terminate an enterprise agreement if one of the following applies:

  • the continued operation of the agreement would be unfair for the employee covered or
  • the agreement does not cover any employee or
  • all the following applies:
    • the continued operation of the agreement poses a significant threat to the viability of the business and
    • terminating the agreement is expected to reduce the risk of terminations of employment and
    • if the agreement has terms about termination entitlements, the employer it covers guarantees the termination entitlements to the Commission.

All agreements, still in operation, which were made before the commencement of the Fair Work Act will automatically sunset (terminate) on 7 December 2023.

Impact on your organisation

  • As an employer, you are still permitted to terminate an agreement with the consent of employees as per existing rules
  • If you have such an agreement, you can apply to the FWC to extend the sunset date by up to 4 years at a time, provided certain conditions are met
  • You are required to notify in writing, before 7 June 2023, affected employees about the upcoming termination unless the application for extension of time is made

Consequences

  • The FWC has the power to start court proceedings for breaches relating to the guarantees of termination entitlements and breaches for failure to notify about sunsetting agreements
  • If the guarantee is breached or there is failure to notify the employees about the agreement sunset, you may face penalties.

Further information

Visit the Fair Work Commission’s website on enterprise agreements

4. Abolition of the ABCC and the ROC

With effect from 6 February 2023, the ABCC (Australian Building and Construction Commission) and the ROC (Registered Organisations Commission) have been abolished.

Impact on your organisation

All ongoing legal matters currently before the courts shall now be transferred to the FWC. Employers may seek workplace advice, information, and assistance from the FWC. The same reporting and compliance obligations remain.

Further information

5. Enhanced small claims process

With effect from 1 July 2023, the monetary cap for recovering unpaid entitlements (via the small claims process) will increase from $20,000 to $100,000. More details will be announced shortly on the FWC’s website.

Further information

Visit the Department of Employment and Workplace Relations fact sheet – Amending the Fair Work Act small claims process.

Do you need advice or support?

More details on these issues above will be clarified on the FWC’s website shortly.

If you require advice or have questions pertaining to these changes and compliance measures, please contact David Wurth, Director at Wurth HR.

Email:  david@wurthhr.com.au
Phone: 1300 900 741