Published June 2023

More IR Reforms & New Entitlements Effective June-July 2023

As many employers would be aware, the Labor Government have announced a multitude of IR reforms, and new and changed employee entitlements over the last 12 months. These are being rolled out progressively, with several of these taking effect in June and July 2023.

Our latest Employer Update provides an overview of the June-July 2023 changes, along with a summary of what’s already in effect and what is to come later in the year.

Throughout this update, the ‘Commission’ refers to the Fair Work Commission and the ‘Act’ refers to the Fair Work Act 2009.

1. WHAT’S CHANGING (June-July)

6 June 2023 – New Provisions RE Requests for Flexible Working Arrangements and Extending Unpaid Parental Leave

The National Employment Standards already includes provisions surrounding flexible working arrangements, however, there are now more stringent requirements on how an employer must respond to requests for flexible work, including the requirement to propose changes other than those initially sought by the employee. Two new categories of eligible employees will also be able to make a request including pregnant employees and employees whose immediate family or household experience family or domestic violence.

Employers will have new obligations before they can refuse a request from an employee for a flexible working arrangement. Employers will have to:

• discuss the request with the employee; and
• make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances; and
• consider the consequences of refusal for the employee; and
• provide a written response that includes:
  • an explanation of the reasonable business grounds for refusing the request and how these grounds apply to the request;
  • other changes the employer is willing to make that would accommodate the employee’s circumstances or that says there aren’t any changes;
  • information about referring a dispute to the Fair Work Commission (the Commission).

If an employer and the employee have discussed the request and agreed to make changes to the employee’s working arrangements that are different to what the employee requested, the employer needs to confirm these agreed changes in writing within 21 days of receiving the request.

The Commission will be able to hear and make orders about disputes about flexible working arrangement requests if the parties can’t resolve the dispute at the workplace level. For example, if an employer refuses an employee’s request, or doesn’t respond to a request within 21 days. Requests for flexible work may also be the subject of arbitration by the Commission.

You can read more about Flexible Working Arrangements and who is eligible to make a request on the Fair Work Ombudsman website.

6 June 2023 – More Changes for Enterprise Agreements (EAs)

Changes relating to dealing with errors, initiating bargaining, multi-employer bargaining, approval of agreements, BOOT requirements and processes, handling bargaining disputes, termination of expired agreements, and terminating zombie agreements. In summary:

• A series of minor changes to the mechanics and process by which an employer must obtain employees’ approval of a proposed EA.
• The FWC is required to produce a “Statement of Principles on Genuine Agreement” which includes informing employees of the proposed bargaining and their rights to have a bargaining representative and providing employees the terms of any proposed EA with a reasonable opportunity to vote in a free and informed manner.
• BOOT amended to require the FWC to make a ‘global assessment’ as to whether each employee who is covered by the proposed EA is better off.
• BOOT processes can be reopened during the life of the EA, and EA’s can be varied for this in their life and contains a provision empowering employees or unions to trigger a reconsideration of the BOOT at any time after the EA is approved.
• 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.
• The declaration will specify a ‘post-declaration negotiating period’, and if, at the end of that period agreement has not been reached, the FWC may make an ‘Intractable Bargaining Workplace Determination’.

 7 June 2023 – New Prohibition on Pay Secrecy (second phase)

The Act already prohibits an employer from preventing an employee disclosing details of their remuneration to other persons (from January 2023). This workplace right means that all employees have the right to ask other employees about their pay rate and choose to disclose or not disclose their pay rate to others. Employees can’t be forced to give this information to another employee if they don’t want to.

From 7th June 2023, it will become an offence for employers to include a pay secrecy clause in an employment contract (penalty $63,000).

Pay secrecy terms in any fair work instrument (such as a Modern Award) have no effect and can’t be enforced after 7 December 2022. This applies regardless of whether the instrument was made before, on, or after this date.

1 July 2023 – Changes to Paid Parental Leave (Centrelink)

Changes to Paid Parental Leave relates to paid leave available through Services Australia (Centrelink) only, not parental leave under the FWA.

• From 1 July 2023 Government Paid Parental Leave Entitlements will be extended from 18 weeks 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.
• You can read our employer update here.

Employers and employees seeking information about Paid Parental Leave should visit the Services Australia website – https://www.servicesaustralia.gov.au/parental-leave-pay

30 June 2023 – 15% Wage Increase For Some Awards

15% wage increase for some employees covered by the Nurses Award, Social, Community, Home Care and Disability Services Award, and Aged Care Award. Read our employer update here.

 1 July 2023 – Wage & Super Increases

From the first pay period commencing on or after 1 July 2023, awards wage rates and some allowances are increasing by 5.75%, and national minimum wage is increasing 8.6%. Read our employer update on this topic here.

From 1 July 2023, superannuation is also increasing to 11%.

2. WHAT’S COMING NEXT

1 August 2023 – New PAID Family and Domestic Violence Leave (small businesses only)

Introduction of 10 days of paid leave per year for all employees including casuals, accruing differently to annual and sick leave, with strict confidentiality requirements – only for businesses with fewer than 15 employees.

• Note that this commenced 1 February 2023 for businesses with 15 or more employees.
• Read our full update here.

16 September 2023 – Significant Changes to the Professional Employees Award

• Significant changes to coverage, hours of work, overtime, time in lieu and penalty rates clauses.
• If this Award applies to your team, read our employer update here.

7 December 2023

• Limits to fixed term contracts – limiting the use of fixed term contracts to 2 years or 2 consecutive contracts (inc. extensions), whichever is the shorter.

12 December 2023

• Sexual Harassment – New Positive Duty on Employers – employers will be required to take proactive steps to prevent sexual harassment, sex discrimination, victimisation and conduct that causes a workplace environment that is hostile on the ground of sex. Complaint timeframes are extended, and new complaint provisions apply to matters before the Australian human Rights Commission. Read our employer update about this here.

3. WHAT HAS ALREADY CHANGED

The changes which have already come into effect prior to June 2023, are noted below along with the links to our applicable employer updates:

7 December 2022

• Initial pay secrecy provisions, making it an entitlement for employees to talk about their pay.
• Changes relating to Enterprise Agreements around zombie agreements, termination of expired enterprise agreements, dealing with errors, initiating bargaining and multi-employer bargaining.
• New anti-discrimination provisions protecting breastfeeding, gender identity, and intersex status, along with increased complaint provisions through to Commission.
• New provisions for equal remuneration orders which ensure equal remuneration for men and women of work of equal or comparable value.

7 January 2023

• New rules for pay rates in job ads – ads cannot list pay rates that are below the relevant award or EA.

1 February 2023

• New PAID family and domestic violence leave – 10 days of paid leave per year for all employees including casuals, accruing differently to annual and sick leave, with strict confidentiality requirements.
• For small businesses with fewer than 15 employees, this entitlement comes in to effect from 1 August 2023.
• Read our full update here.

6 February 2023

• Abolishment of the Australian Building & Construction Commission (ABCC) and Registered Organisations Commissioner – some powers absorbed into the Fair Work Commission.

March 2023

• Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Bill 2023 received royal assent. The bill allows Australia’s Workplace Gender Equality Agency to publish gender pay gaps of employers with 100 or more workers – a key reform to drive transparency and action towards closing the gender pay gap. This applies for reporting period commencing 1 April 2023 (Private Sector) and 1 January 2024 for the Public Sector.
• Read our employer update here.

6 March 2023

• Prohibiting sexual harassment in connection with work – you can read our employer update here.

1 April 2023

• New Psychosocial Hazards Code of Practice (Queensland) introduced – read our full update here.

1 May 2023

• New shut down provisions in awards (which apply when a business closes temporarily, such as for period of planned maintenance or over the Christmas period). Read our full update here.

4. STEPS EMPLOYERS SHOULD BE TAKING

• 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.

5. 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.

You can find further information about the Secure Jobs, Better Pay changes on the Fair Work Commission site here.