With many of the new rules and changes under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 already starting, there are several upcoming key start dates that organisations need to be aware of.

We’ve provided a brief summary below including how these changes might impact Employers.

Domestic and family violence leave

Unpaid Domestic and family violence leave has been available to the majority of Australian employees through the award system for a number of years. Under the Secure Jobs Better Pay legislation Fair Work amendment,  It will now be paid leave under the National Employment Standards.  This means that:

• Full-time, part-time and casual employees will be able to access 10 days of paid family and domestic violence leave in a 12-month period. It won’t be pro-rated for part-time or casual employees.  
• The full 10-day leave entitlement will be available upfront on commencement of the legislation and then from each anniversary date for each employee thereafter. It won’t accumulate from year to year if it’s not used.
• The leave requirement commences from:

o 1 February 2023, for employees of non-small business employers (employers with 15 or more employees on 1 February 2023)

o 1 August 2023, for employees of small business employers (employers with less than 15 employees on 1 February 2023).

Pay Secrecy

Prohibiting pay secrecy clauses in employment contracts is now unlawful.  Employers should review their template employment contracts, policies and employee handbooks to ensure that they do not have clauses in there that stop an employee from talking about their pay.

Fixed-term or Maximum-term Contracts

Fixed-term contracts will now be subject to more stringent prohibitions and restrictions. Teneal from our office has published a blog on this subject on our website, however, we have detailed some of the changes below:

• The new legislation limits the use of fixed-term contracts for the same role beyond two years (including renewals) or two consecutive contracts
• A fixed or maximum term contract may not be used to circumvent an employee’s rights or entitlements, including those under the National Employment Standards.
• There is also the introduction of Fixed-Term Information Statement (like the one for all new Employees and Casual Employees).  

Flexible Working Arrangements

The ability of employees to ask for flexible working arrangements has been broadened. Employees can file a dispute to the Fair Work Commission if their Employer refuses their request or the employer fails to respond to requests within 21 days.

In a nutshell:

• Employees are now able to request more flexible work arrangements
• Businesses must provide a valid reason for refusal
• Reasons for refusal must adhere to specific criteria
• The Fair Work Commission has arbitration powers to settle disputes

Sexual Harassment and Anti-Discrimination

Beginning 6th March 2023:

Sexual harassment connected to work will be clearly prohibited;

• Employers will be held accountable for sexual harassment unless they can show that they have taken all necessary measures to eliminate it from the workplace ;
• Employees can apply to the Fair Work Commission for a stop-sexual harassment order. The FWC should initially attempt to mediate the conflict. If it is not resolved at that point, the FWC may, with the permission of both sides, settle the dispute. If neither party consents, the applicant will then have 60 days to file an application to the Federal Court.

Sexual Harassment is defined as misconduct under the Fair Work Act 2009 and may be grounds for immediate termination, provided the employer can demonstrate they have taken all necessary measures to eliminate sexual harassment from the workplace.

Bargaining and Enterprise Agreements

Better off Overall Test.

The FW Act now clearly specifies that the better-off overall test (BOOT) is a 'global assessment' (not a line-by-line evaluation of entitlements).  The practical application of the new specifications of the BOOT test has not been largely tested as yet.

Multi-Employer Bargaining Agreements

Under this clause, there are provisions to enable agreements covering multiple employers within the same industry (including competitors, external companies within supply chains, or internal group companies).

Zombie Agreements (ie: EBA’s that are still in use and were used prior to Fair Work legislation in 2010)

Workplace Agreements that were approved prior to 2010 or under the ‘Fair Work Transitional Provisions and Consequential Amendments) Act 2009 are now referred to as Zombie Agreements.  All Zombie Agreements will be terminated by the Fair Work Commission effective 7th December 2023 unless an application has been made to the Commission.  Employers with Zombie Agreements are required to notify their employees that they are covered by a Zombie Agreement by 6th June 2023.

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If you need any advice and need help, please reach out at hello@hrdynamics.com.au or 1800 877 747