Fair Work Legislation Amendments Bill passed

Understanding Fair Work Legislation Changes

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 was formally passed by both houses of Parliament and received Royal assent on 6 December 2022, becoming the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (the Act).

The Act came into effect on 6 December 2022. Key changes made by the Act being introduced in stages over a twelve month period. There are lots of changes, with varying effective dates, shown below in date order to assist with an implementation timetable:

7 December 2022

• • Pay equality
    • prohibits pay secrecy clauses in employment agreements
    • creates a workplace right that will allow employees to question each other about their remuneration and conditions of employment
  • Discrimination and respect at work
    • provides further protections for intersex status, gender identity and breastfeeding by including these as protected attributes
  • Bargaining and enterprise agreements
    • allows the Fair Work Commission (Commission) to make workplace determinations and to intervene in bargaining disputes
    • provides broader access for single and multi-employer enterprise bargaining which may mean that some agreements will cover multiple employers
    • provides an automatic sunsetting for agreements that predate the Fair Work Act 2009 (Cth)
    • shortens the approval process for enterprise agreements

6 March 2023 or any earlier date to be fixed by proclamation

• • Discrimination and respect at work
    • sexual harassment is expressly prohibited
    • the Commission has broad powers to deal with relevant disputes
    • this will work in tandem with the introduction of a positive duty for employers to prevent sexual harassment in the workplace, as outlined in this post

6 June 2023 or any earlier date to be fixed by proclamation

• • Flexible work requests
    • expands the scope for flexible work requests to include circumstances for employees hearing for family members over 55 or in family and domestic violence circumstances
    • employers will be required to give their reasons for refusing flexible working requests
    • the Commission now has increased power to arbitrate disputes with flexible work arrangements occasions
  • Unpaid parental leave
    • increased employer obligations when an employee request an extension to unpaid parental leave
    • employers will be advised to give reasons for refusing an extension, and these reasons have been limited in scope
    • the Commission also has powers to arbitrate unpaid parental leave disputes
  • Bargaining and enterprise agreements
    • simplifies the better of overall test (also known as the BOOT) to increase flexibility and ensure global rather than line-by-line analysis of relevant terms

6 December 2023 or an earlier date to be fixed by proclamation

• • fixed or maximum term contracts - restricting employers from using such contracts, including in the following circumstances:
    • the contract term exceeds two years
    • the contract allows for renewal that would see the term exceeding two years, or
    • there are consecutive contracts for the employee to perform the same or substantially similar work.

Exceptions for when an employer can use fixed or maximum term contracts include:

• the relevant employee earns over the high income threshold
• modern award permits it
• employee works in a governance role
• the role requires specialist skills to complete specific tasks
• hiring for seasonal work water-filled temporary absence
• using government contracts, or
• the contract is part of the specific training arrangement

• Fair Work Commission
  • additional powers as outlined above, plus
  • ordering pay increases for workers in low-paid and female majority industries
  • abolishes the Registered Organisations Commission and the Australian Building and Construction Commission, transferring all existing functions to the Fair Work Commission

  • 2 new Commission expert panels have been established for pay equity and the care and community sector (by no later than 6 March 2023)

Parliament has also passed laws concerning family and domestic violence leave. From 1 February 2023 (or 1 August 2023 for employers who are a small business), all employees (including those were casual and part-time staff) will be entitled to 10 days paid family and domestic violence leave each year. This change forms part of the National Employment Standards and converts the previous arrangement of five days of unpaid family and domestic violence leave to 10 days of paid family and domestic violence leave.

Disclaimer: This does not purport to be comprehensive or to render legal advice. You should not act based on any information contained in this publication without first obtaining specific professional advice. Consult your legal advisor to determine if this applies to you.