Employment Legislation Updates for 2023

Flexible Working Arrangements (effective from 6 June 2023)

• All employees will be able to request flexible working arrangements, specifically;
  • Employees, or a member of their immediate family or household, experiencing family and domestic violence.
  • Employees who are pregnant.
• Employers will have new obligations before they can refuse a request from an employee for a flexible working arrangement. This includes specifically addressing with the employee, formally via written correspondence, an explanation as to the reasonable business grounds for refusing a request and how these grounds apply to the request.
• The employer will need to really consider other changes they can make to accommodate the employee's circumstance.
• Employees will be able to lodge a dispute with the Fair Work Commission if parties can't resolve at a workplace level. The commission will hear the dispute if;
  • A request has been refused, or
  • The employer doesn't respond to the request in written format within 21 days of the request being made.

Fixed Term Contract (effective 6 December 2023, if not agreed sooner by the Australian Government)

• Employers will no longer be able to employ an employee on a fixed term contract that is for two or more years. This includes extension or extending a fixed term contract more than once.
• Employers must not take certain actions to avoid the new restrictions from applying. For example, they can't;
  • Delay re-engaging an employee for a period
  • Re-engage the employee and engage someone else instead to do the same or substantially similar role as previously engaged.

What does this updated legislation mean for me as an employer?

Pay Secrecy (effective from 7 December 2022)

• Employers cannot take adverse action against existing or future employees who ask and/or share information about their pay, or prevent them in doing so.
• Employers should not include pay secrecy clauses in employment contracts or other workplace instruments that were created or updated from the 7 December 2022 onwards. If you do, you will be breaking employment law.

Example pay secrecy clauses:

"Your remuneration and terms and conditions of your employment are to be held in strict confidence."

"Details of your remuneration must be kept confidential."

• Employers must be aware of how this legislation effects existing employment contracts that were created before 7 December 2022 and still contain pay secrecy clauses. In this instance, the pay secrecy clauses will no longer have effect and cannot be enforced.

Job Advertisements (effective from 7 January 2023)

• Employers cannot place job ads with pay rates lower than the legal minimum entitlements that apply to the job (e.g., if the pay rate breaches the Fair Work Act, an award or enterprise agreement).
• This also applies to active job ads employers placed before the 7 January 2023.

Paid Family and Domestic Violence Leave (effective from 1 February 2023 for non-small businesses & 1 August 2023 for small businesses)

• Employers must provide their employees with 10 days of paid family and domestic violence leave in a 12-month period (see relevant dates above).

Flexible Working Arrangements (effective from 6 June 2023)

• Employers need to understand what reasonable business grounds are to refute a request from an employee and make genuine effort to find an alternative arrangement to accommodate the employees circumstances.
• Employers must respond to all Flexible Working Arrangement requests formally in writing whether accepting or declining the employee's request within 21 days of the request being made. The response needs to include;
  • An explanation of the reasonable business grounds for refusing the request and how these grounds apply to the request,
  • Other changes the employer is willing to make that would accommodate the employees circumstances or that says there aren't any changes,
  • Information about referring a dispute to the Fair Work Commission.

Fixed Term Contracts (Effective from 6 December 2023)

• Employers from 6 December 2023, will have to provide employees they're engaging on new fixed term contract a Fixed Term Contract Information Statement which will be available on the Fair Work website.
• Employers will be required to review their current employees under fixed term arrangements and ensure they are not in breach of this legislation.

How will this be enforced?

The Fair Work Ombudsman has the power to start court proceedings for alleged breaches of the updated workplace laws. An individual and/or business can be penalised or fined by a court if the court determines that they have broken a workplace law. Employees have the right to lodge a dispute if they believe this legislation is being breached. If Fair Work suspect there is an alleged breach, they will follow the below process:

• Workplace investigations (i.e., Fair Work Inspectors will conduct an investigation into your workplace).
• Compliance notices (i.e., a compliance notice is a notice issued by a Fair Work Inspector which requires an employer to fix a breach of an Australian workplace law by a certain date).
• Infringement notices (i.e., an on the spot fine that may be issued to an individual or body corporate who breaks relevant workplace laws relating to employee records and pay slips).
• Compliance partnerships (i.e., a business partners with Fair Work to ensure their systems and processes are working complying to workplace laws, which usually continues for a 2-3 year period).
• Enforceable undertakings (i.e. a written agreement between Fair Work and an individual/business who has not followed workplace law. This may be used instead of going to court).
• Litigation (i.e., Fair Work takes an employer to court for breaking workplace laws).

Next Steps

• Update and remove pay secrecy clauses in your employment contracts that were issued from 7 December 2022 and employment contract templates moving forward.
• Update and remove pay secrecy clauses in your employee handbook and/or other policies.
• Prior to placing a job ad, ensure you have checked the role and its requirements against the correct award, ensuring you are offering its minimum pay requirements.
• Inform your employees that they can access 10 days paid family and domestic violence leave from the date that applies to your business (i.e., effective from 1 February 2023 for non-small businesses and 1 August 2023 for small businesses).
• Inform managers within your business to advise HR if they receive a flexible working arrangement request from an employee. This is to ensure that the correct process can be followed, and that there is no breach of workplace law.
• Review current employee fixed term contract arrangements and ensure you have no potential breaches.

How Gallagher can help

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Disclaimer

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