Big Changes in Employment Laws… Are You Ready?

What is the change?

Employers cannot restrain (in a contract or otherwise) employees from discussing remuneration. It is now a “workplace right” of employees to share this information and other terms of their employment which are reasonably necessary to determine remuneration outcomes (eg. asking what number of hours the other employee works to determine pay differences). Employees can apply to Fair Work Commission for relief if employers take “adverse action” against the employee exercising this right.

• When it starts (other than for Small Business): 7 December 2022 but there is a six month grace period before civil penalties for a breach of this obligation.
• When it starts (Small Business): 7 December 2022 but there is a six month grace period before civil penalties for a breach of this obligation.

Our Recommendations:

• Review all of your templated agreements to remove any clause imposing confidentiality over pay conditions.
• Ensure those responsible for setting remuneration.
• Existing employment agreements with pay secrecy clauses will continue but the pay secrecy clauses are not enforceable so there is no need to communicate this with employees if the employer does not wish to.

What is the change?

Employees cannot be discriminated against due to breastfeeding, gender identity and intersex status.

• When it starts (other than for Small Business): 7 December 2022
• When it starts (Small Business): 7 December 2022

Our Recommendation:

• Update discrimination policies to ensure these attributes are included as a ground of discrimination.
• Educate employees on these changes and monitor employee behaviour to avoid discrimination because of these new protected attributes.

What is the change?

Lowering of “sexual harassment” threshold: Sex based harassment was defined as “any unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated”. The word “seriously” has now been removed.

• When it starts (other than for Small Business): 13 December 2022
• When it starts (Small Business): 13 December 2022

Our Recommendation:

• Update discrimination policies to ensure these attributes are included as a ground of discrimination.
• Educate employees on these changes and monitor employee behaviour to avoid discrimination because of these new protected attributes.

What is the change?

Job Advertisements: Employers cannot advertise positions with pay rates that are less than any applicable modern award or the national minimum wage.

• When it starts (other than for Small Business): 7 January 2023
• When it starts (Small Business): 7 January 2023

Our Recommendation:

• Review all pay rates currently advertised to ensure they are not below current rates of pay provided under applicable modern awards or the national minimum wage.
• Consider putting controls in place for all future advertisements to ensure this requirement is not breached.

What is the change?

Paid Domestic & Family Violence Leave: employees become entitled to 10 paid days of domestic and family violence. For pay slips, employers are prohibited from including information that shows:

• an amount is paid for paid family and domestic violence leave
• leave was taken as paid family and domestic violence leave
• the balance of paid family and domestic violence leave.

• When it starts (other than for Small Business): 1 February 2023
• When it starts (Small Business): 1 February 2023

Our Recommendation:

• Give some thought about how you will implement this. Do you have a policy addressing the evidence you may require of the need for this leave (if any)? How will you maintain confidentiality of the employee’s need to take this leave?
• Ensure payroll are aware of the requirements for information on payslips.

What is the change?

Sexual harassment in connection with work prohibited: Sexual harassment in connection with work will be expressly prohibited. The changes make clearer that employers will be held vicariously liable for sexual harassment unless they can prove that they have taken all reasonable steps to prevent the conduct.

Employees can make an application to the FWC for a stop-sexual harassment order. The FWC must first attempt to conciliate the dispute. If the dispute is not settled at that point, the FWC may, with the consent of both parties, arbitrate the dispute. If consent is not given by either party, the applicant will then have 60 days to make an application to the Federal Court.

• When it starts (other than for Small Business): 6 March 2023
• When it starts (Small Business): 6 March 2023

Our Recommendation:

• Update all policies touching on sexual harassment.
• Educate your employees on your policy and what is and what is not sexual harassment.
• Monitor all employee behaviour to identify risks and to step in where conduct is considered a risk.

What is the change?

Flexible work arrangements: Employees have the right to request flexible work arrangements to accommodate requests based on family or domestic violence or where the employee is pregnant.

Before refusing any request employers must:

• Consult with the employee to discuss the request;
• Make genuine efforts to accommodate the request;
• Consider the impact of a refusal on the employee;
• Provide a written response to the request including an explanation based “on reasonable business grounds” for refusing the request and how those grounds apply to the request;
• Identify other changes the employer would be willing to make to accommodate the employee’s circumstances or say that there are no other changes that the employer can make;
• Provide the employee with information about the employee’s right to refer the dispute to the Fair Work Commission.

The Fair Work Commission has the ability to hear an appeal of the decision to refuse a request for a flexible work arrangement and decide if the refusal was valid. The appeal must be filed within 21 days of the refusal.

• When it starts (other than for Small Business):  6 June 2023.
• When it starts (Small Business): 6 June 2023.

Our Recommendation:

• Update any policies dealing with flexible work arrangements to reflect this new position.
• While there is no positive duty to do so, consider whether you will propose flexible work arrangements to any employee dealing with family or domestic violence or where the employee is pregnant.
• Train all of management team to ensure they are aware of these obligations in responding to any request for flexible work arrangements.

What is the change?

Prohibition on fixed term contracts and extensions: Except in limited circumstances, employers can no longer employ an employee on a fixed term of 2 years or more (including any extensions) and a fixed term contract can only be extended once (so long as the total period of service under the original and extended term does not exceed 2 years in total).

Exclusions to this new requirement will be:

• Employees that have specialised skills the employer does not have and the employer needs that skill to complete a specific task;
• Employees who earn over the high income threshold.

When it starts (other than for Small Business): 7 December 2023.

When it starts (Small Business): 7 December 2023.

Our Recommendation:

• Supervisors are aware of this new requirement and that no fixed term contracts will exceed the 2 year fixed term.
• Educate your employees on your policy and what is and what is not sexual harassment.
• Prepare to offer permanent roles to the fixed term employees for whom no exclusion will apply.

What is the change?

All employers must take all reasonable and proportionate measures to eliminate (ie prevent) sexual harassment and sex discrimination from occurring in the workplace. What is reasonable and proportionate will depend on the business’ nature, size, circumstances, resources available and how practical it is (and the costs involved) in implementing measures.

• When it starts (other than for Small Business):7 December 2022 but the penalties will not be imposed for a period of 12 months (ie until 7 December 2023)
• When it starts (Small Business):7 December 2022 but the penalties will not be imposed for a period of 12 months (ie until 7 December 2023)

Our Recommendations:

• Review your policies covering these issues to ensure it addresses this positive duty.
• Ensure those responsible for setting remuneration have a proper basis for any pay differences for the same role.
• Monitor employee behaviour to identify areas of risk and intervene quickly to ensure conduct that could become sexual harassment/sex discrimination is prevented.
• Regularly conduct sexual harassment training (one off training will not be sufficient).