Greatest Good Regulatory Update June 2023 

Flexible Work Arrangements effective 6 June 2023

The Federal Government’s flexible work arrangements (FWA) reforms came into effect on 6 June 2023, expanding the right of employees to request flexible work arrangements. Employees with at least twelve months continuous service may request flexible work arrangements where the employee:

• is a parent, or has responsibility for the care of a child who is school-age or younger, or
• is a carer, or
• has a disability, or
• is aged fifty-five years or older, or
• is experiencing family and domestic violence (irrespective of who is perpetrating this violence), or
• provides care or support to a member of their immediate family or household who requires care and support because the member is experiencing family and domestic violence, or
• is pregnant

Employees on paid parental leave will also have a new express statutory right to request a further twelve month extension of the unpaid parental leave. Even if employee does not fall within one of these categories, employers should closely consider how they respond to all flexible work arrangement requests.

Under the changes, employers:

• must still grant or refuse valid FWA requests within 21 days and do so in writing
• may only refuse a request on reasonable business grounds.

If an employer is considering refusing a FWA request, under the changes they will be expressly required to:

• discuss the request with the employee and generally try to reach agreement
• consider the consequences of refusal for the employee.

There are no changes to the reasonable business grounds to refuse a FWA request, which include it would be too costly, there is no capacity to change the working arrangements of other employees to accommodate the request, it would likely result in significant loss in efficiency productivity, or have a significantly negative impact on customer service.

Employers will need to set out alternative changes they could accommodate if they refuse a request, or notify the employee that no alternate changes are available. It should be noted there is currently no binding dispute resolution process to deal with disputes over flexible work arrangements, which allow either party to then refer the matter to the Fair Work Commission.

Employees on paid parental leave will also have a new express statutory right to request a further twelve month extension of the unpaid parental leave. Even if employee does not fall within one of these categories, employers should closely consider how they respond to all flexible work arrangement requests.

Under the changes, employers:

• must still grant or refuse valid FWA requests within 21 days and do so in writing
• may only refuse a request on reasonable business grounds.

If an employer is considering refusing a FWA request, under the changes they will be expressly required to:

• discuss the request with the employee and generally try to reach agreement
• consider the consequences of refusal for the employee.

New pay secrecy provisions in force effective 7 June 2023

The pay secreyc provisions in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 came into effect 7 June 2023. This means that employers can no longer include terms in employment contracts/agreemtns that restrict employees From discussing their pay or terms and conditions of their employment relating to their pay, with any other person. Contracts entered into from 7 June 2023 cannot contain payee secrecy provisions as they will not be enforceable. There are also penalties payable if employee is deliberately include clauses which refrain employees from discussing their remuneration details. If an employment contract/agreement was executed prior to 7 December 2022, then the provisions in those contracts remain valid until that contract is varied.

Legislative changes effective 1 July 2023

There are lots of legislative changes that kicked in from 1 July, as summarised below:

• The super guarantee increased from 10.5% to 11%
• The minimum wage increased to $882.80 ore $23.23 and will apply from the first full pay period on or after 1 July 2023
• The Fair Work Commission application fees increased to $83.90 (no fee for sexual harassment dispute applications)
• The Fair Work's high income threshold in unfair dismissal cases increased to $167,500 and the compensation limit is $83,750 from 1 July
• Paid parental leave changes came into effect. These changes include:
  • Eligible parent couples or singles can share their 20 weeks leave
  • This leave can be taken in multiple blocks over a two year period from the child’s birth of adoption date
• Employees now have greater rights to request an additional 12 months parental leave (see above)

Legislative changes effective 1 August 2023

• Domestic violence leave was introduced in February for employers with 15 or more employees, requiring them to provide 10 days of paid famliy and domestic violence leave each year. For employers with less than 50 employees, these changes become applicable from 1 August 2023
• It should be noted that there are some strict privacy and compliance obligations that sit alongside these changes (ie. not advising other staff of the reason for an employee's absence, ensuring pay slips do not indicate the type of leave, etc), so we recommend you seek legal advice on how best to implement these arrangements
• It should also be noted that these entitlements apply to all employees irrespective of the time they have been employed

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.