In December 2022, the Federal Government passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which purported to make a series of significant changes to workplace laws in Australia.
This article summarises some of the key changes of which all employers need to be aware, a breach of which may lead to significant financial penalties against the employer. The key topics covered below are:
- pay secrecy prohibition;
- advertising unlawful pay rates;
- flexible working arrangement related to pregnancy and domestic violence victims;
- new categories of discrimination (protected attributes relating to gender, breastfeeding, and intersex status);
- sexual harassment in connection with work to be prohibited under the Fair Work Act with broader application; and
- unpaid parental leave.
Pay Secrecy
From 7 December 2022, employees have new workplace rights to:
- share information about their pay or employment terms and conditions with other people, including fellow employees; and
- ask other employees about their pay or employment terms and conditions.
Employees may choose not to provide this information to other employees if they do not wish to do so.
Furthermore, employers are also prohibited from including “pay secrecy” clauses in employment contracts. A “pay secrecy” clause is a term in an employee’s employment contract which denies employees and future employees the new workplace rights as described above. Any pay secrecy clauses included in an employment contract entered into or varied on or after 7 December 2022 will be void. Further, from 7 June 2023, the inclusion of a pay secrecy clause in a new contract entered into on or after 7 December 2022 could also result in the employer being subject to significant fines.
The Fair Work Ombudsman will begin enforcing this requirement from 7 June 2023.
Job Advertisements
From 7 January 2023, employers cannot include pay rates which would breach the Fair Work Act 2009 (Cth) (FWA), a modern award, or an enterprise agreement in their job advertisements. This prohibition applies from 7 January 2023 regardless of when the job ad was posted.
A breach of this provision could result in significant fines for employers.
Flexible Work Arrangements
From 6 June 2023, the existing right to request flexible working arrangements under the FWA will be extended to include, in addition to other eligible employees, any employees who are:
- personally (or whose member of their immediate family or household is) experiencing family and domestic violence; or
- pregnant.
If an employer agrees to a request for flexible working arrangements, they are required to confirm their acceptance of the request in writing within 21 days of the request.
Employers may only refuse a request for flexible working arrangements if:
- they have discussed the employee’s request for flexible working arrangements with them;
- they have genuinely tried to make an agreement with the employee to accommodate the employee’s circumstances by finding alternate working arrangements (but an agreement did not eventuate);
- they have considered the consequences to the employee if they refuse the employee’s request; and
- the refusal is based on reasonable business grounds (e.g., any changes would be too costly for the employer or impractical).
If an employer has validly refused a request for flexible working arrangements, the employer is required to provide a written response to the employee within 21 days. This response must:
- provide an explanation of the reasonable business grounds for why the employee’s request was refused, and explain how those grounds relate to the employee’s request;
- explain any other changes the employer is willing to make to try to accommodate the employee’s circumstances to an extent, or otherwise, state that there are no such changes which can be made; and
- provide information to the employee about how the employee can refer a dispute the Fair Work Commission.
New Protected Attributes
From 7 December 2022 onwards, three further attributes have been added to the list of attributes under the General Protections provisions of the FWA in relation to prohibited discrimination. Employers are now also prohibited from discriminating against employees for the following new protected attributes:
- breastfeeding;
- gender identity; and
- intersex status.
Employers who take adverse action against an employee on the basis of these attributes, may be subject to a general protections (discrimination) application by the employee.
Sexual Harassment
From 6 March 2023, sexual harassment in connection to work will officially be prohibited by the FWA. This means that sexual harassment in connection to work will come under the jurisdiction of the Fair Work Commission, allowing the Commission to deal with disputes on such matters. Therefore, not only can complaints be made to the Australian Human Rights Commission for sexual harassment under the Sex Discrimination Act 1984 (Cth), there is now a further venue for people to make an application to deal with such behaviours.
This prohibition covers sexual harassment suffered by:
- workers, which includes (but is not limited to) employees, contractors, work experience students and volunteers;
- future workers;
- anyone conducting a business or undertaking.
The protection does not apply to workers who start at a workplace before 6 March 2023.
Under this protection, an employer may be held to be vicariously liable for any sexual harassment committed by an employee or agent which is in connection with their work. This does not apply if the employer is able to prove that they took all reasonable steps to prevent the sexual harassment. For more information on this, please see our previous article on the new workplace sex discrimination laws.
An employer who is found to be in breach of this protection, may be liable to pay significant fines.
Unpaid Parental Leave
From 6 June 2023, employers will need to respond to requests for an extension of unpaid parental leave in a specific way.
If an employer makes a request for an extension of their unpaid parental leave, the employer may choose to agree to the request as is, or discuss the request with the employee and agree to a different extension period. If the employer agrees to some form of extension, then they will need to confirm this in writing to the employee within 21 days of the request.
An employer may only refuse the request if:
- the employer discussed the request with the employee;
- the employer genuinely tried to reach an agreement with the employee about the extension (but an agreement did not eventuate);
- the employer considered all the consequences to the employee of refusing the extension; and
- the employer’s refusal was on reasonable business grounds.
If the employer refuses the request, the employer is required to provide a written response to the employee’s request within 21 days. The response must provide:
- an explanation of the reasonable business grounds for why the employee’s request was refused, and explain how those grounds relate to the employee’s request;
- an alternate period of extension the employer is willing to agree to, or otherwise, state that they will not agree to any extension; and
- information to the employee about the Fair Work Commission’s powers to hear a dispute on the matter.
If the matter proceeds to an arbitration by the Fair Work Commission, and the Commission makes an order which is unfavourable to the employer, the employer will be subject to significant fines if the employer breaches that order.
PH Solicitor understands that many employers and employees will have questions about these new laws and the implications they will have on their workplace, and that staff may need training as to what type of workplace conduct is unlawful, so as to reduce the chances of a claim against the employer for unlawful or discriminatory actions on an employee. Please contact us on admin@phsolicitor.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.
Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.
