The Fair Work Legislation is arguably one of the most crucial employment laws in Australia, but the constantly changing workforce adds more complexity. Recently, changes to the Fair Work Legislation Act were passed, which will introduce various employment and industrial relations reforms throughout 2023.
Today, we are going to be discussing this in a little more detail and this will allow us to understand each of these reforms. It is essential that everyone is on the same page regarding the details of these legislations in order to better understand them. The reforms include changes to rolling fixed-term contracts, prohibitions for pay secrecy clauses, amendments to changes to multi-employer agreements, new rules for single-interest enterprise agreements when it comes to bargaining, and additional anti-discrimination measures.
The following are the main areas that will see changes:
• Pay Secrecy Clauses
• Flexible Work Arrangements
• Unpaid Parental Leave
• Fixed Term Contracts
• Anti-Discrimination Protections
• Sexual Harassment
The prohibition of pay secrecy clauses prevent employees from discussing their salary and remuneration with colleagues. The amendment makes pay secrecy clauses illegal and provides employees with a workplace right to discuss their pay or disclose their salary to other team members. Employers must ensure that their employment contracts do not contain pay secrecy clauses and consider whether any changes to employee compensation are necessary. Employees can now openly discuss their remuneration with one another, and existing pay secrecy clauses have no legal effect.
Flexible Work Arrangements
The new legislation also makes changes to flexible work and unpaid parental leave requests. These changes will help to provide greater flexibility and support for employees who are juggling work and family responsibilities, ultimately leading to better work-life balance and improved job satisfaction.
For flexible work requests, employers must:
1. meet with the employee and genuinely try to reach an agreement;
2. consider the impact of the refusal on the employee;
3. provide detailed reasons for refusals (only those on reasonable business grounds); and
4. inform the employee of any alternative working arrangements they would be willing to make instead.
Unpaid Parental Leave
The new legislation includes some parameters that employers need to observe when responding to a request for an extension of unpaid parental leave.
If the employer chooses to refuse the request, they must:
1. respond to it in writing within 21 days
2. only reject a request if –
• it has been discussed and genuinely considered the extension
• the consequences have been considered
• the refusal is on valid business grounds
Changes on Fixed-Term Contracts
Fixed-term contracts have typically been utilised by employers for the purpose of a specific task or project and the contracts terminate after the inserted date and/or period of time. It allowed employers to finish the employees’ employment without a requirement to provide a reason for termination, a notice period, or redundancy.
The new legislation will address this issue by imposing restrictions on the use of fixed-term contracts, making it more difficult for employers to employ team members on rolling fixed-term contracts. This is something that will come as a great relief for many employees who have fallen into the trap of arrangements that only benefit their employers. This makes it a key element of these changes that are taking place now.
The new legislation will make it unlawful for:
1. the length of a fixed-term contract to be longer than two years;
2. the length of the original contract and renewal periods to be longer than two years; and
3. the renewal of the contract to be done more than once.
The new legislation also introduces additional anti-discrimination measures that can help provide greater protection for employees against discrimination. This is all based on various characteristics such as gender, age, race, and sexual orientation. These measures will help to create a more inclusive and diverse workplace, where all employees are treated with respect.
There are many layers to this process and there is no question that discrimination is still a problem that many people are facing. The best part of these measures is that they enforce the importance and value of equal rights regardless of any differences of skin color, gender, or religious beliefs amongst others.
The new legislation adds protection for the following:
• gender identity
• intersex status.
Sexual harassment is defined as a broad range of unwelcome sexual advance or request for sexual favours including behaviour of a sexual nature that could have been anticipated to possibly make the person harassed feel offended, humiliated, or intimidated.
Employers are now liable for the conduct of their employees or agents who breach the express prohibition on sexual harassment unless they can demonstrate that they actively took steps to prevent the prohibited sexual harassment. Employees can utilise policies and training to mitigate the risk of liability.
Employees who have been subjected to prohibited sexual harassment can now apply to the Fair Work Commission for a stop sexual harassment order and request that the Commission deals with the dispute.
Summary of the 2023 Changes to Fair Work Legislation:
• The prohibition of pay secrecy clauses allows employees to discuss their salary and remuneration with coworkers, leading to increased transparency and fairness in the workplace.
• The changes to flexible work and unpaid parental leave requests provide greater opportunities for employees to balance their work and personal responsibilities.
• The additional anti-discrimination measures provide greater protection for employees against discrimination based on various characteristics such as gender, age, race, and sexual orientation.
• The crackdown on fixed-term contracts ensures that employees are not on rolling fixed-term agreements for extended periods of time.
• The new bargaining rules for single-interest enterprise agreements and changes to multi-employer agreements provide more efficient and effective processes for negotiating collective agreements.
There is no doubt that many things will happen that could change or modify these changes in favor of either side of employment. The one thing that seems to be most relevant is that the changes taking place are likely to create a better work environment for everyone.
Final Thoughts on The Changes to Fair Work Legislation
Overall, these changes will significantly impact both employers and employees. Employers must ensure that their employment contracts comply with the new legislation. At the same time, employees now have more rights and can bring up disputes in regard to their requests to the Fair Work Commission.
By understanding and implementing these changes to the Fair Work Legislation, businesses can operate in compliance with the law while providing a fair and supportive work environment for their employees. This is the main reason why we need to ensure collective awareness of these changes.
At HR Expertise, our team of HR Consultants provides HR Consulting in Melbourne and across Australia to help navigate you through the process, call us today if you need assistance, we would love to work with you.