Changes to Workplace Laws in Australia – “Secure jobs better pay” Act

We previously wrote a blog detailing all the upcoming changes as a result of the “Secure Jobs, Better Pay” Bill and what these would potentially look like.

Well, the new legislation officially passed in December 2022, and it’s now more formally known as The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, and the changes have all started coming into effect. As far as we can see the purpose of all these changes is to improve Australia’s workplace relations system (specifically promoting gender equality and job security).

But what does it all mean in a practical sense for business owners? It means there are a number of changes that you need to be aware of and these may or may not have an impact on how you do things in your business. Now in our previous blog we explored some of the issues with the

Bill and the Labor government did water some of the changes down but below we set out all the new changes and what you need to know now that its passed.

Pay Secrecy Changes – 7 December 2022

Effective 7 December 2022 employees now have the legal right to share (or not share if they don’t want to) information about their pay and their employment terms and conditions.

People also now have the legal right to ask others about their pay and employment terms and conditions. This is quite broad as it covers asking both people who work for the same employer and people that work for other employers. So pretty much anyone can ask anyone else about their pay and conditions – but this doesn’t mean that pay and conditions must be shared if someone is asked! But what if your current contracts have pay secrecy clauses you may be asking well:

New contracts:

• After 7 December 2022: If a contract entered into has pay secrecy terms, these cannot be enforced.
• After 7 June 2023: If a contract entered into has pay secrecy terms, these cannot be enforced, and the employer can face penalties for including it!

Existing contracts:

• If a contract was entered into before 7 December 2022 and has pay secrecy terms these terms are still legitimate and will continue until the contract is updated or varied.

Awards and Agreements (fair work instruments):

• Any pay secrecy terms in fair work instruments have no effect and cannot be enforced no matter what date they were made.

Job Advertisements (ads) Changes

Effective 7 January 2023 another major change with this new legislation is that job ads can not include any pay rates that would breach the Fair Work Act or that are less than minimum legal entitlements. This is for salary, periodic rates and piece rates.

This change was implemented on 7 January 2023, and it doesn’t matter when a job ad was put up, it applies to all ads including ones put up before the change.

It’s quite shocking that this needs to be written into legislation!

Changes to Flexible work – 6 June 2023

Effective 6 June 2023 there are some changes to how businesses will be required to deal with flexible work requests meaning that more employees will be able to request flexible work arrangements. The list of employee groups that can apply for flexible working agreements will now include pregnant employees.

Employers are also going to have specific obligations that they must meet before they can refuse a flexible work request including:

• They must have discussed the request with the employee that is requesting it and here at HR Gurus we recommend that you document this discussion.
• They must make a genuine effort to find alternate arrangements to support the employee with their situation.
• Take into consideration the consequences of refusing the request for the employee.
• Provide a written response to the request (within 21 days of the request) that contains:
• • an explanation of the “reasonable business grounds” for refusing the request and specifically how these grounds apply to the employee’s request.
  • any and all other changes that the employer is willing to make that would accommodate the employee’s circumstances or if there are not any changes that the employer is willing to make.
  • Information about referring a dispute to the Fair Work Commission.

If the employer and employee agree to changes to working arrangements that are different to what the employee originally requested, the employer must put these agreed changes in writing.

Changes to Fixed term contracts – 6 December 2023 note that the government can change this date to be earlier

Effective 6 December 2023 there are major changes to the rules around fixed term contracts and essentially an employee can no longer be on a fixed term contract that is:

• for 2 or more years (this includes extensions).
• extended more than once.
• a new contract that is for the same or a similar role as previous contracts.

And for the employers trying to do sneaky things they “must not take certain actions to avoid the new restrictions from applying” such as delaying re-contracting an employee. For example, let’s say someone was on a 2-year contract that ends mid-December, and then in February the following year (conveniently after Christmas and school holidays) they are offered a new contract for the same role.

There are exceptions to this, such as with training arrangements (think apprenticeships) and Awards that allow fixed term contracts with specific conditions that contradict this new legislation.

Now what?

We recommend that your next steps as a business are to:

• Update your contract templates to remove pay secrecy terms (this is also a great time to do a full review of your template, something that HR Gurus are very skilled at).
• Review any existing contracts for pay secrecy terms and consider updating them.
• Review your job ad templates to confirm pay rates listed are in line with minimum.
• Review any existing job ads for pay rates.
• Update your flexible work policy and procedures (another thing that HR Gurus love doing is policy and procedure review).
• Review your fixed term contracts, policy and procedure (specifically to include providing the Fixed Term Contract Information Statement to employees that are being engaged on fixed term contracts from 6 December 2023).

If you need any help with understanding these changes or implementing them your friendly HR Gurus are only a phone call away.

Written by Guinevere Missingham