The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act), together with the recent Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth), usher in the most significant reforms to Australia’s workplace law landscape since the enactment of the Fair Work Act 2009 (Cth) (FW Act).
This article summarises the key reforms introduced by the Secure Jobs, Better Pay Act.
The Secure Jobs, Better Pay Act makes significant changes to the FW Act, including:
Some of the reforms take immediate effect. Some will be introduced at later dates.
Employees now have the workplace right to:
As workplace rights, employees are protected from any detriment in their employment, including disciplinary action, for exercising these rights.
Any existing term of an employment contract or industrial instrument that is inconsistent with these new workplace rights has no effect. Critically, employers are prohibited from entering into new employment contracts that include clauses inconsistent with the new workplace rights.
Practices will need to amend their template contracts as soon as possible to ensure that any new employment contract they enter into does not contain pay secrecy provisions.
Three new protected attributes have been included in the FW Act: breastfeeding; gender identity; and intersex status. The protections against adverse action now apply to employees and prospective employees who possess these attributes.
Practices will need to ensure awareness of the new protected attributes and ensure employment decisions are not made based on a protected attribute. These new laws reflect existing discrimination laws.
It is now unlawful to advertise roles at less than the applicable lawful minimum rate of pay for the position. Practices will need to ensure compliant advertising for vacant positions.
Laws against sexual harassment are not new. However, an additional legal prohibition on sexual harassment in connection with work will be included directly in the FW Act.
The prohibition will apply to workers and prospective workers (including employees, contractors, apprentices, trainees, students and volunteers) and include sexual harassment perpetrated by third parties in the workplace (e.g. patients and suppliers). An employer may be vicariously liable for sexual harassment by an employee or agent in connection with work unless it took all reasonable steps to prevent the sexual harassment.
The new laws will further introduce a dispute resolution framework for sexual harassment that allows an ‘aggrieved person’ to make an application in the FWC within 24 months from the date of the contravention or the last of the contraventions, requesting the FWC to make a ‘stop sexual harassment order’ (this right already exists) or ‘otherwise deal with the dispute’ (this is a new right). In most cases, the FWC will ‘deal with the dispute’ by conducting a mediation or conciliation. If the dispute is not resolved, an aggrieved party can then pursue their claim in the Federal Courts; or, by consent, to arbitration in the FWC, where orders for unlimited compensation and lost remuneration will be available.
Practices will need to be able to show they have taken all reasonable steps to prevent sexual harassment from occurring.
The amendments to the FW Act in relation to flexible work expand the circumstances in which an employee may request flexible working arrangements to include situations where they or a member of their immediate family or household is experiencing family or domestic violence, and where an employee is pregnant.
Under the current laws, employers are required to respond in writing to requests for flexible working arrangements within 21 days and can only refuse requests on reasonable business grounds. Under the new laws, where an employer refuses a request or fails to respond to a request within 21 days, the employee will be able to make an application to the FWC in relation to the request.
The FWC must encourage the parties to reach an agreed position on the flexible working request and, unless exceptional circumstances apply, first deal with the dispute by means other than arbitration. Where the matter is referred for arbitration and there is no reasonable prospect of the dispute being otherwise resolved, the FWC will be able to make an order requiring the employer to grant the request or make specified changes to the employee’s working arrangements.
Practices will need to ensure that they are across the new prescriptive processes for genuinely considering and responding to requests for flexible work arrangements.
Under the FW Act, an employee taking 12 months unpaid parental leave can request an extension of a further 12 months of unpaid leave (up to 24 months in total), unless their partner has already taken 12 months of leave. The new laws will require the employer to discuss an extension request with the employee. If the employer refuses a request, it will need to provide reasons in writing and notify the employee in writing if there is any other period of extension it would be willing to agree to. If a dispute about a requested extension of unpaid parental leave cannot be resolved, employees will be able to pursue dispute resolution through the FWC by conciliation, mediation or, if these non-binding methods fail, arbitration.
Practices will need to ensure they carefully assess and respond effectively to requests for an extension of unpaid parental leave in circumstances where the practice genuinely cannot accommodate the request.
The Secure Jobs, Better Pay Act makes significant changes to the collective bargaining provisions of the FW Act in an attempt to invigorate multi-employer bargaining and to generally simplify elements of the enterprise bargaining process.
Employers with ‘clearly identifiable common interests’ will be able to bargain together through the ‘single interest bargaining stream’. In essence, the new provisions make it much easier for parties to engage in, or be required to engage in, multi-employer bargaining. The FWC will be empowered to issue a ‘single interest employer authorisation’ on application by an employer or union if it is satisfied that the relevant employers have clearly identifiable common interests, and that the authorisation is not contrary to the public interest.
When considering if two or more employers are common interest employers, relevant matters may include geographical location, the regulatory regime, the nature of the enterprises to which the proposed agreement would relate, and the terms and conditions of employment in those enterprises.
Employers with fewer than 20 employees will be able to ‘opt out’ of a single interest employer agreement, while employers with 50 or more employees will bear the onus of establishing that they are not a common interest employer.
After a multi-employer agreement has been approved by the FWC, unions will be able to apply to the FWC seeking an order requiring other employers with common interests and comparable operations to join the agreement, including where a majority of employees want to be covered by the agreement.
The Secure Jobs, Better Pay Act introduces new limitations on the use of fixed term and maximum term contracts that will come into effect from 6 December 2023, unless otherwise proclaimed, so it is possible that the new laws could take effect earlier. Employers will be prohibited from entering into fixed term contracts for the same or a substantially similar role for more than two years, or two consecutive contracts, unless a limited exemption applies. The main exemptions will include:
A term of an employment contract that is inconsistent with the new laws will be invalid and the parties will otherwise be entitled to rely on and enforce the terms of the contract. This means that any purported fixed or maximum term employment contract that is inconsistent with the new laws will become an ongoing employment contract.
Additionally, employers will be required to provide employees on a fixed term arrangement with a copy of a new Fixed Term Contract Information Statement. As with the existing obligation to provide the Fair Work Information Statement to all employees and the Casual Employment Information Statement to all casual employees, penalties will apply for failure to provide the new statement to relevant employees.
Practices have 12 months to review all existing and any proposed future fixed term employment arrangements to ensure compliance with the new laws. In many cases, this will require the redrafting and the renegotiation of term contracts with existing employees and reviewing existing term contract templates for future use.
The Secure Jobs, Better Pay Act makes provision for the sunsetting of all remaining pre-FW Act transitional instruments (commonly known as “zombie” agreements) that are currently preserved by the FW Act. Those instruments will automatically terminate after a 12-month ‘grace period’ on 7 December 2023, subject to an application by the employer to the FWC to extend that period
We have prepared a more detailed article about the new laws, available here , for practices interested in more information about the new laws.
If you have questions or would like more specific information about how the Respect at Work Act will affect, please call us on 1800 867 113, or click here to organise a confidential discussion.
Stephen Schoninger leads the employment and workplace law practice at Avant Law, based in Sydney. Stephen has over 18 years’ experience practising exclusively in employment, industrial relations and discrimination laws. Stephen is called on for his ability to plainly advise on and pragmatically apply legal principles to manage and resolve complex issues arising in the workplace. Stephen advises employers and employees in the private and public sectors on all areas of workplace law and is an experienced litigator of work-related claims. Stephen also conducts workplace investigations and delivers workplace compliance training. He regularly presents seminars on topical employment and workplace law issues.
Savanna Russo is an Associate in the employment and workplace law practice at Avant Law, based in Sydney. Savanna has experience advising both employer and employee clients on all areas of employment law. She has particular experience advising businesses in a wide range of industries including allied health, banking and finance, professional services and construction. Savanna provides practical, solutions-focused advice and is known for her professional and empathetic approach.
Disclaimer: The information in this article does not constitute legal advice or other professional advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of this content .The information in this article is current to 12 December 2022. © Avant Mutual Group Limited 2022
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