Published October 2023

More IR Reforms & New Entitlements Effective August – December 2023

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

Our latest Employer Update provides an overview of the August to December 2023 changes, along with a summary of what’s already in effect and what is to come later in the year. We’ve also highlighted a few new additions that have recently been announced but not yet passed through Parliament.

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 (August 2023 – December 2023) 

1 August 2023 – Paid Family & Domestic Violence leave (for small businesses only)

In 2022, the Labor Government passed landmark legislation allowing working Australians to gain access to 10 days of paid family and domestic violence leave per year, from 1 February 2023. For small businesses (those with fewer than 15 employees), the new entitlement came into effect from 1 August 2023.

This entitlement is available to most employees, including casuals, and will replace the current NES entitlement of 5 days unpaid family and domestic violence leave (FDVL). You can read our full update here for more detailed information.

 16 September 2023 – Changes to Professional Employees Award

 Following a review of the Professional Employees Award 2020, there have been changes and new provisions relating to coverage, hours of work, overtime, time in lieu and penalty rates clauses. These changes took effect from the first full pay period commencing on or after 16 September 2023.

This Award applies to employers in the IT Industry, quality auditing industry and telecommunications services industry as well as employers of professional engineers, professional scientists and medical researchers.

You can read more about Changes to Professional Employees Award on the Fair Work Ombudsman website or read our full update here.

6 December 2023 – Fixed Term Contracts Changes

 From 6 December 2023, new limitations on the use of fixed term contracts will apply meaning that employers can no longer employ someone on fixed term contracts for the same role beyond a duration of two years (including renewals) or two consecutive contracts – whichever is shorter.

Please note that this will mean that if someone is employed for an initial fixed period of 6 months, then extended for 6 months, the total 12 months becomes their maximum period before they are deemed a permanent employee (as this is the shorter of the two allowable scenarios).

Where a fixed term contract is made in breach of the limitations, the employee will be defined as a ‘permanent employee’ and the end date under the relevant employment contract will have no effect. They will also then have access to any relevant entitlements which may apply to their permanent employment such as notice of termination, redundancy pay and/or access to unfair dismissal following termination.

 If a dispute arises in relation to the above, the Fair Work Commission will have the power to conciliate, mediate or arbitrate (by consent), and also commence court proceedings. Employees will also be able to access the small claims court if they wish to take civil action. 

More information can be found in our full update here.

 12 December 2023 – Sexual Harassment – New Positive Duty

New obligations will require employers 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. It will no longer be acceptable to simply have a policy and cover these topics in an induction.

Complaint timeframes are extended, and new complaint provisions apply to matters before the Australian human Rights Commission.

More information can be found in our employer update about this here.

2. WHAT ELSE HAS BEEN PROPOSED?

Following the Federal Government’s recent announcement of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, there are further IR reforms proposed for 2024 (beyond what was originally announced in 2022).

This section provides a summary of what has been included in the bill and it should be noted that any new laws that pass will not necessarily pass in their current (proposed) form. Edwards HR will provide more information about these further reforms when it is available:

• Introduction of a ‘definition of employment’ into the Act;
• Casuals – More changes for casuals, including updating definition of casual employment and implementing a new ‘choice’ process which may change the existing casual conversion process/entitlement;
• Contractors – A new test (employee vs. contractor) is on the cards, focussed on the totality of the relationship. Unfair contract terms to also be covered;
• Gig workers – new minimum standards orders for this industry;
• Same Job, Same Pay – a claim could be made to the Commission to have labour hire workers paid as per the site enterprise agreement. Note this is not proposed to automatically be an entitlement or requirement as has been spruiked in recent news;
• Road Transport – New expert panel and advisory group to be established, along with new powers for the Commission to make minimum standards orders;
• Wage Theft – new national laws and penalties for intentional failure to pay entitlements;
• More changes to bargaining, delegates and union powers.

Be reminded that this list outlines what is being proposed and all proposed reforms are subject to further scrutiny. If the laws pass, this will likely occur in February 2024, with changes.

A 2023-2024 Modern Awards Review has also been announced, and at this stage only applies to the following awards:

• Children’s Services Award 2010
• Clerks – Private Sector Award 2020
• Fast Food Industry Award 2010
• General Retail Industry Award 2020
• Hospitality Industry (General) Award 2020
• Restaurant Industry Award 2020
• Social, Community, Home Care and Disability Services Industry Award 2010

The review will consider:

• the new object of the Fair Work Act and modern awards objective regarding job security and the need to improve access to secure work across the economy ;
• the impact of workplace relations settings on work and care; and 
• award coverage and minimum standards for the arts and culture sector.

Edwards HR will provide further updates as they become available.

3. WHAT HAS ALREADY CHANGED

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

 28 March 2023 – Changes to Public Holiday

Employers and employees must have a clear understanding of the regulations and best practices for managing schedules during Public Holiday periods.

On 28 March 2023, the Federal Court changed the way in which employers require employees to work on public holidays. The decision came out of CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51, and impacts on employers rostering employees to work public holidays.

Employers must request that employees work on a public holiday – a failure to request that the public holiday be worked could result working on the public holiday unlawful.

• Note that this change to Public Holiday request is still being challenged in the High Court.
• Read our full update here.

 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.

• Employers will have new obligations before they can refuse a request from an employee for a flexible working arrangement and extending parental Leave.
• Read our full update here.

 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.

• Read our full update here.

 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.
• Read our full update here.

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

 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%.
• From 1 July 2023, superannuation is also increasing to 11%.
• Read our employer update on this topic here.

4. STEPS EMPLOYERS SHOULD BE TAKING

The IR reforms, changes to awards, and new and changed employee entitlements are the biggest change in the employment relations landscape we have seen in many years. Employers are strongly encouraged to familiarise themselves with the changes and seek advice specific to their circumstances to ensure they are compliant and mitigating risk.

• Employers should understand changes applicable to their business and the associated effective dates.
• Small Business should understand the changes to Family and Domestic Violence leave so employees can access it when required.
• Employers should review employees covered by the Professional Employees Award (particularly work hours and remuneration) and make changes to existing arrangements and contract of employment to ensure compliance.
• Employers should understand the fixed term contract changes, review how any current employees may be impacted, and ensure they are used correctly from December 2023.
• Employers should review any existing Sexual Harassment Policy and introduce proactive measures to ensure compliance with the new positive duties and maintain the workplace safe.
• Employers who have employees rostered to work public holidays, should review existing arrangements, and prepare for how they will comply with the new requirements introduced in March 2023.
• Training for Leaders is crucial in employers complying with the multitude of changes that have occurred over the last 12 months, along with those that are yet to come. Speak with the team at Edwards HR about tailoring a training session for your leaders.

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 advice about how these changes will affect your business or would like to understand how we can support your compliance and risk mitigation efforts, Edwards HR are more than happy to help – please contact our team on 07 3568 0866.

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