Employment law compliance checklist for secure jobs better pay and Respect@Work

Articles Written by Ruveni Kelleher (Partner), Norah Chafardet (Senior Associate), Alyssa Aboultaif (Law Clerk)
people walking in an office lobby

On 30 June 2023, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Act) received Royal Assent.  The Act seeks to promote job security and flexibility, protect worker entitlements and address gender inequality. A summary of the key changes proposed by the Act along with the actions required by employers are set out below, together with the changes from the Secure Job and Better Pay and Respect@work changes dealt with in our previous checklist:

Effective date

Amendments

Action required by employers

7 December 2022

  • Pay secrecy: Pay secrecy terms in all instruments are now prohibited.
  • Protected attributes under the Fair Work Act 2009 (Cth) (FWA): Breastfeeding, gender identify and intersex status are now protected attributes under the general protections provisions of the FWA.
  • Powers of the Fair Work Commission (FWC): The FWC now has the power to vary enterprise agreements to correct any errors, defects or irregularities.
  • Termination of agreements after the nominal expiry date: The FWC can terminate agreements that are unfair or pose a significant threat to the viability of the business. 
  • Initiating bargaining: Bargaining can now be initiated once an employer receives a request to bargain, irrespective of whether the employer agrees with that request.
  • Pay secrecy: Amend contracts, incentive plans and policies dealing with confidential information, remuneration, any terms and conditions of the employee’s employment that are reasonably necessary to determine remuneration outcomes including the number of hours that the employee works.
  • Protected attributes under the FWA: Amend policies dealing with discrimination to include new protected attributes.
  • Termination of agreements after the nominal expiry date: Review enterprise agreements that are expired or coming up to their nominal expiry date to determine whether they should be terminated or if bargaining is to commence and devise strategy accordingly. As part of this, employers should determine whether their business is likely to be susceptible to multi-employer bargaining and devise any multi-employer bargaining strategies accordingly.

13 December 2022

  • Hostile workplace environment: It is now unlawful for a person to subject another person to a workplace environment that is hostile on the grounds of sex.
  • Positive duty: There is now a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful sex discrimination, sexual harassment, hostile work environments and victimisation.
  • Unlawful systemic discrimination: The Australian Human Rights Commission now has powers to enquire into matters that relate to actual or suspected systemic unlawful discrimination.
  • Representative applications: Representative applications (or class actions) can now be made in relation to discrimination matters.
  • Hostile workplace environment: Review and update policies dealing with workplace behaviours, discrimination and harassment as well as complaint handling practices and provide training to all employees and officers on the changes. 
  • Positive duty: Conduct a risk assessment to identify sexual harassment risk factors, assess the likelihood of sexual harassment occurring and the impact, develop measures to control the risks by eliminating them or minimising them as far as reasonably practicable. Review sexual harassment and work, health and safety policies and complaint handling processes to ensure that they comply with the new legislative changes and review the effectiveness of the control measures.
  • Review potential discrimination claims and claims history to determine the risk of class actions and develop a strategy to reduce the risk.

7 January 2023

  • Job advertisements: Employers are now prohibited from advertising pay rates that contravene the FWA or any industrial instrument.
  • Job advertisements: Review current job advertisements to ensure that they accurately reflect pay rates under the FWA and industrial instruments.

1 February 2023

  • Family and domestic violence leave: Employees of non-small businesses (15 or more employees) can access 10 days paid family domestic violence leave per year. This includes part-time and casual employees.
  • Family and domestic violence leave: Inform all employees of this entitlement and review and update any policies or practices that deal with leave.

6 March 2023

  • Sexual harassment in the workplace: Sexual harassment in the workplace is expressly prohibited and employers are vicariously liable for the acts of their employees or agents where the contravention arises in connection with the employment or duties.
  • See above. 

6 June 2023

  • Flexible work requests: The current right to request a flexible working arrangement will be extended to a request made where the employee or an immediate family member experiences family and domestic violence or where the employee is pregnant. 
  • Extension to parental leave: Employees who have taken unpaid parental leave will be entitled to request an extension to their leave for a further 12 months.
  • FWC’s powers to resolve disputes: The FWC will have powers to deal with disputes arising from flexible work requests and parental leave extensions.
  • Multi-employer bargaining: There will be a greater scope for multi-employer bargaining through single-interest bargaining, supported bargaining and workplace cooperative bargaining.
  • Flexible work requests: Review policies or practices that deal with flexible working arrangements.
  • Extension to parental leave: Inform all employees of this entitlement and update any policies or practices that deal with parental leave.
  • See above.

1 July 2023

  • Unpaid Parental Leave: The unpaid parental leave provisions in the National Employment Standards under the FWA have been amended to:
    • Increase flexibility for working parents by allowing them to take up to 100 days of their 12-month unpaid parental leave entitlement flexibly (up from 30 days);
    • Enable pregnant employees to access their flexible unpaid parental leave up to 6 weeks before the expected date of birth of their child, or earlier if agreed;
    • Allow employees to commence unpaid parental leave at any time during the 24 months following the birth of placement of their child; and
    • Ensure both parents can take up to 12 months of unpaid parental leave, regardless of the amount of leave the other parent takes. Further, both parents can request an extension of up to 12 months, without impacting the amount of leave available to the other parent.
  • Workplace Determinations: An enterprise agreement applying to employees in relation to a particular employment would cease to apply when the FWC makes a replacement workplace determination that covers the employees in relation to the same employment.
  • Unpaid Parental Leave: Review and update policies that deal with unpaid parental leave.

1 August 2023

  • Family and domestic violence leave: Employees of small businesses (less than 15 employees) who are impacted by family and domestic violence will be entitled to 10 days paid leave per year.
  • See above for family and domestic violence leave.

6 December 2023

  • Fixed term contracts: Fixed term contracts will be limited to two consecutive contracts or a maximum duration of two years (unless an exception applies).
  • Fixed Term Contract Information Statement (FTIS): This statement will be required to be given to employees before they enter into a fixed-contract of employment or as soon as practicable after they enter into a fixed-contract of employment.
  • Fixed term contracts: Review current employment contracts, identify any employees that are engaged on a fixed-term basis, consider the use of other employment options.
  • FTIS: Provide this statement to employees who commence employment under a fixed-contract of employment.

7 December 2023

  • Zombie agreements: All remaining agreements made prior to the commencement of the FWA will automatically be terminated, unless an extension has been granted by the FWC.
  • Zombie agreements: Review all relevant agreements, inform all affected employees that their agreement will be terminated on or before 6 June 2023 and apply to the FWC on or before 6 December 2023 for an extension to be granted.

30 December 2023

  • Employee Authorised Deductions: Employees can only authorise employers to make salary deductions that are either recurring or for amounts that vary from time to time, if they are principally for the employee’s benefit. 
  • Employee Authorised Deductions: Review employment contracts salary deduction provisions to ensure employees have acknowledged the principal benefit of the arrangements to them.

1 January 2024

  • Superannuation: The right to superannuation contributions under superannuation legislation will become a National Employment Standard.
  • Superannuation: Ensure employment contracts deal with superannuation in accordance with the applicable legislation, including the increased rate of 11% applicable from 1 July 2023.
Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

Related insights Read more insight

Closing Loopholes No 2 Bill – new laws regarding casuals, contractors and the right to disconnect

The second round of the Federal Government’s “Closing Loopholes” amendments to the Fair Work Act 2009 (Cth) (FW Act) were passed by Parliament on 12 February 2024 and are yet to receive Royal...

More
Recent work health and safety developments

All employers should now have implemented measures to discharge their obligation to take reasonable steps to eliminate sexual harassment and other unlawful conduct in the workplace given the...

More
Closing Loopholes Bill: partitioned and passed

Following a deal with crossbench Senators Jacqui Lambie and David Pocock, the Senate split the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill). As a consequence, the first...

More