Changes to Fair Work Act announced Dec 2022

On December 2, The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 passed parliament and is now Australian law. 

The Act marks the most extensive industrial relations reform seen since the introduction of the Fair Work Act around 13 years ago.

Here’s what you need to know about the key changes, and how we will support you to comply.

1. Secure Work

A primary focus of the legislation is on businesses employing a large proportion of casual workers. In September 2021, a new obligation was put on employers to consider requests from casual workers to convert to permanent after 12 months.  Under the recent changes, the Fair Work Ombudsman (FWO) is required to provide more educational resources to casuals, to ensure they understand the implications of their working arrangements.

There have also been changes to the regulation of fixed-term contracts. From 7 December 2023, employers will need to provide a Fixed Term Contract Information Statement to all new employees who are on fixed-term contracts.

The new laws prohibit any fixed-term contract arrangements longer than two years, with certain exceptions. These exceptions include employees above the high-income threshold.

How we can help:

• We will review the length of current fixed-term contracts and advise if other working arrangements might be more suitable.  
• We will ensure the onboarding process includes correct Fair Work Statements – the current Casual Fair Work Statement (for casual employees) and the new Fixed Term Contract Information Statement for fixed-term employees which will become a requirement from December 2023.

2. Sexual Harassment in the Workplace

The laws build on changes included in the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022.

One of the key changes to sexual harassment laws is the requirement for employers to be proactive around sexual harassment prevention. What this means in practice is that employers will need to take steps to proactively make sure that they have assessed the risk in their business and put in place a plan to make sure that sexual discrimination and harassment do not occur.

From March 2023, a new dispute resolution process will be available to employees giving them the choice to pursue disputes through the Fair Work Commission, the Australian Human Rights Commission, or applicable state and territory anti-discrimination processes.

How we can help:

• We will review current policies and procedures around preventing and addressing sexual discrimination and harassment.
• Most of our clients already conduct regular staff feedback surveys – we will review those survey questions and recommend changes if we feel that is needed. For clients that don’t conduct regular staff feedback, we recommend you do so, and we can manage that process for you.
• We will investigate training and education options and make recommendations, including mandatory regular training beginning at Induction.

3. Pay transparency & Gender Pay Equity

As of now, employers are no longer permitted to include pay secrecy clauses in employment contracts. They cannot stop employees from openly discussing their pay and conditions. The Act also expands the scope for the Fair Work Commission to make “equal remuneration orders”.

How we can help:

• We will review employment contracts, removing any pay secrecy clauses.
• We will review all company policies and procedures to ensure there is nothing stated preventing employees from freely discussing their pay and conditions among themselves.
• We will conduct an audit to determine if there are any gender pay discrepancies, and implement a plan with you to close the gap should be require. The performance review process would be a good opportunity to address this scenario should it arise” or something along those lines

4. Flexible Work Arrangements

From 6 June 2023, the right to request flexible working arrangements will also apply to:

• employees, or a member of their immediate family or household, experiencing family and domestic violence
• employees who are pregnant.

Employers will have to:

• discuss the request with the employee
• make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances
• consider the consequences of refusal for the employee
• provide a written response that includes:
  • 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 employee’s circumstances or that says there aren’t any changes
  • information about referring a dispute to the Fair Work Commission (the Commission).

If an employer and the employee have discussed the request and agreed to make changes to the employee’s working arrangements that are different from what the employee requested, the employer needs to confirm these agreed changes in writing within 21 days of the request. The Commission will be able to hear and make orders about disputes about flexible working arrangement requests if the parties can’t resolve the dispute at the workplace level

5. Enterprise bargaining

The changes to enterprise bargaining represent a significant shift in industrial policy. Perhaps the most contentious aspect of the changes, the Act expands the concept of multi-enterprise bargaining. Under the old Act, only employers could apply for authorisation to negotiate a single employer agreement. Under the new Act which comes into effect in June 2023, employees may now apply for that same right without the employer’s consent (for businesses employing more than 20 staff.)