Published March 2023

In 2022, nation-wide IR reforms were announced, along with a raft of other changes including new employment entitlements and changes to existing entitlements.

This update sets out an overview of all the amendments that have taken effect so far and others that commence from March 2023 onwards, which have impacted or will impact both employers and employees.

WHAT’S ALREADY CHANGED?

• Closing the Pay Gap Bill – The bill allows to publish gender pay gaps of employers with 100 or more workers in order to drive transparency and action towards closing the gender pay gap. Read our Employer Update here.
• Pay secrecy provisions have commenced and further provisions apply from 7th June 2023 – it will become an offence for employers to include a pay secrecy clause in an employment contract (penalty $63,000).
• Job security and gender equality are introduced into the objectives of the Fair Work Act 2009 and the modern awards objective, and gender equality is introduced into the minimum wages objective.
• The Equal remuneration provisions and the provisions relating to varying modern awards for work value reasons are amended.
• Amendments to the anti-discrimination provisions to include breastfeeding, gender identity and intersex status.
• Changes to applications for the termination of enterprise agreements after the nominal expiry date.
• Sunset period for “zombie” agreements confirmed.
• Changes to initiating bargaining. And the Commission has new powers to deal with errors in enterprise agreements.
• Paid family and domestic violence entitlements were introduced in February 2023. Read about the new leave entitlements here and the updated Fair Work Info Statements here.

You can read our earlier Employer Update about these changes here.

RECENT CHANGES SEXUAL HARASSMENT – 6^th of March 2023

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 introduce several new obligations on employers including a positive duty to take reasonable and proactive measures to eliminate sexual harassment and sex discrimination in the workplace.

New laws prohibiting sexual harassment in connection with work apply from 6 March 2023 – you can read about the detailed specifics in our Employer Update here.

What you need to know

In summary, the new Workplace sexual harassment protections are:

• sexual harassment in connection with work is prohibited;
• there are more protections against sexual harassment;
• the Fair Work Ombudsman (that’s us) and the Fair Work Commission have new powers in relation to sexual harassment protections.

The Respect at Work Bill applies to all employers in Australia, as well as all employees, contractors, and volunteers working for these businesses or organisations. This covers all aspects of the workplace, from in-person interactions to online communications.

To ensure compliance as an employer, you should consider the following measures:

• Audit and where appropriate review and update existing policies and procedures on sexual harassment, discrimination and victimisation to ensure they reflect many obligations under the Respect@ work Bill. Visit the following website ( https://www.respectatwork.gov.au/ ) recently launched by the AHRC to help employers prevent, and workers respond to, workplace sexual harassment;
• Implement Training on Sexual Harassment, discrimination and victimisation regularly for the purpose of educating all employees; and eliminate risks;
• Improve WHS practices and conduct a sexual harassment – specific risk assessment to identify the likelihood of discrimination and harassment occurring, and measures to eliminate or control hazards/risks;
• Monitor the workplace environment and culture implementing adequate reporting processes and procedures; and
• Ensure leadership roles are promoting a safe, respectful, and equitable workplace, including ensuring that management are taking proactive steps and exercising appropriate due diligence in doing so.

OTHER CHANGES COMING UP

1^st April 2023  – Psychosocial Hazards – Code of Practice Update (Qld)

Employers have a duty to ensure, so far as is reasonably practicable, the health and safety of each worker while at work. Health includes physical and psychological health. This means that employers must ensure that psychosocial hazards at work are effectively managed.

The employer’s duty to workers includes ensuring the health and safety of workers from harmful acts from third parties, such as clients, visitors, or patients.

You can read more in our Employer Update here.

7th June 2023 – MULTIPLE CHANGES

• Approval of Agreements – a series of minor changes to the mechanics and process by which an employer must obtain employee’s approval of a proposed EA.
• Better Off Overall Test – amended to require the FWC to make a ‘global assessment’ as to whether each employee who is covered by the proposed EA is in fact, better off.
• Bargaining Disputes – ‘Intractable Bargaining Declaration’ If a Bargaining Representative has made an application to the FWC with a bargaining dispute, and there is no prospect of an agreement being made; the FWC can make the declaration.
• Requests for Flexible Work – include more stringent requirements on how an employer must respond to requests for flexible work.

Note: Edwards HR will provide a more detailed update closer to the effective date.

1^ST July 2023 – PARENTAL LEAVE CHANGES

This Paid Parental Leave Legislation change relates to Centrelink only, not parental leave under the FWA. It will be extended to up to 20 weeks at the rate of the national minimum wage, increase leave entitlement by two weeks every year from 1 July 2024 to 1 July 2026 to a total of 26 weeks, set a new threshold limit of $156,647 for individuals and $350,000 for families and be on a “take it or leave it” basis.

You can read more about the changes in our Employer Update here.

6^th of December 2023 – LIMITATIONS ON FIXED TERM CONTRACTS

Limitations on the use of fixed term and successive contracts include:

• The prohibition of contracts of employment that provide for fixed term employment of more than two years and prohibits the extension or renewal of such a contract;
• The prohibition of options to extend or renew the fixed term employment contract more than once (regardless of how short the period is);
• The FWO will be required to prepare a Fixed Term Contract Information Statement which employers will be required to provide to current and future fixed term employees; and

Fixed term employees who earn above the high-income threshold (currently $162,000 per annum) are exempt from these restrictions. There are also further limited exemptions.

Note: Edwards HR will provide a more detailed update closer to the effective date.

OUR RECOMMENDATIONS SO FAR

• Employers should understand the changes applicable to their business and the associated effective dates.
• Employers should update their standard contract clause and consider the impact of changes on existing pay secrecy clauses in employment contracts and enterprise agreements.
• Employers should immediately review their sexual harassment training, policies, procedures and reporting mechanisms.
• Employers who are engaged in or contemplating bargaining for an EA should review their overall approach and ensure that they are fully informed of the amended approval process.
• Employers should review any existing policies that deal with the right to request flexible work. Where flexible work requests are received, they must be assessed and documented in accordance with the FWA provisions.
• Employers who rely on fixed term contracts, should review existing arrangements and prepare for how they will comply with the new requirements in 2023.

NEXT STEPS

• These amendments represent a significant change to the industrial relations landscape and employers need to familiarise themselves with the changes and carefully assess the associated risks to their labour costs, productivity, and input costs.
• The team at Edwards HR will continue to share any updates as they rollout. If you would like more advice about how these changes will affect your business or require advice, Edwards HR are more than happy to help.
• Alternatively, you can find more information about the Secure Jobs, Better Pay changes on the Fair Work Commission site here.