Deadlines for ‘Secure Jobs, Better Pay’ Amendment

Come Wednesday 7 June 2023, businesses will be expected to have adopted the changes relating to pay secrecy, flexible working arrangements and employee notification of zombie agreements as a part of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (the Act). These changes are just some of several significant changes to employer obligations in Australia which cover various areas including enterprise bargaining, pay secrecy, sexual harassment, flexible work arrangements, termination of enterprise agreements, and fixed-term contracts.

This article will summarise these imminent changes as well as touch on future changes employers should keep their eye on for the remainder of the year.

Previous Deadlines – Sexual harassment  

On 7 March 2023, sexual harassment in connection with work was explicitly prohibited and pecuniary penalties were introduced for contraventions. Employers will be held vicariously liable for sexual harassment and must take reasonable steps to prevent it and adequate policies, procedures, and training should be implemented to address it.

The Act provides employees with the ability to seek stop sexual harassment orders from the Fair Work Commission if an employee has been sexually harassed by a person(s) and there is a risk that the harassment will be ongoing. These orders provide the Commission the power to hold employers vicariously liable for sexual harassment unless reasonable steps to prevent sexual harassment have been taken.

Employers should ensure their policies are up to date and that employees receive comprehensive and refresher training while monitoring progress and responding to risks in the event they arise.

Pay Secrecy

Come 7 June 2023, contractual clauses which prohibit the disclosure of remuneration, or that an employee’s pay is confidential will be illegal.

Employees will have an express right to choose to disclose, or not disclose, their remuneration and any terms and conditions of their employment that are reasonably necessary to determine remuneration outcomes, to any other person.

These amendments mean that any clauses which prohibit disclosure of remuneration will be unlawful and can result in penalties. Further, employers will not be able to discipline their employees because they have disclosed their pay to anyone.

Employers should prepare to review their employment contracts and workplace policies and remove any provisions relating to pay secrecy. Training should also be provided to managers and supervisors to ensure employees are not being disciplined or otherwise for conduct relating to the disclosure of their pay and working conditions.

Flexible Work

Circumstances in which flexible work can be requested will be expanded to include employees impacted by family and domestic violence. Further, the Act has formalised how employers should respond to flexible work requests and has introduced a dispute resolution mechanism which may compel employers to engage in conciliation or arbitration.

Employees will be able to request to change their working arrangements where they, or a member of their immediate family or household, experience family and domestic violence.

Employers will have 21 days to respond to these requests, and are only able to refuse a request if all the following apply:

• The employer has discussed the request with the employee and genuinely tried to reach an agreement;
• The employer and employee have been unable to reach agreement;
• The employer has had regard to the consequences of the refusal for the employee; and
• The refusal is based on reasonable business grounds as defined in the Act.

By 7 June 2023, employers should ensure they have appropriate processes in place to deal with flexible working requests.

Zombie Agreements

‘Zombie’ or transitional agreements which came into force before the Fair Work Act 2009 (Cth) was introduced, will automatically expire. Further, unilateral termination of all enterprise agreements will be limited to where the Fair Work Commission is satisfied that:

• An agreement continuing to operate would threaten the viability of the employer’s business;
• The termination of the agreement would reduce the potential terminations of employees; or
• The employer will provide a guarantee of termination entitlements under the agreement following its termination.

For affected ‘zombie’ agreements, employers will need to ensure that by 7 June 2023, employees are informed that:

• They are covered by the ‘zombie’ agreement;
• That on 7 December 2022, sunset provisions came into effects; and
• That, unless an application is made to extend the ‘zombie’ agreement, it will terminate on 7 December 2023.

Otherwise, for enterprise agreements which are current, these will not be able to be terminated without union agreement, except where one of the above factors is satisfied.

Future Deadlines

By 6 December 2023, the use of fixed-term contracts will be limited to two years (including renewals) or two consecutive contracts, whichever is shorter.

Exceptions to these limits include if employees are engaged:

• to perform only a distinct and identifiable task involving specialised skills;
• in relation to a training arrangement;
• to undertake essential work during a peak demand period;
• to work during emergency circumstances or during a temporary absence of
• another employee; or
• if the employee’s earnings are above the high-income threshold.

Employers should ensure they familiarise themselves with these amendments and review their contracts and policies, to ensure compliance with the new regulations before the grace period expires.

If you have any questions about the adapting your businesses to meet the changes of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, you can review our full ‘Secure Jobs, Better Pay factsheet’ with provided examples in the Member Portal under ‘General Resources’ or reach us for a discussion on 1800 572 679.