The Australian Government has passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. This legislation amends the Fair Work Act to change a number of existing rules and introduces a range of new workplace laws.
The amendments to the Fair Work Legislation are quite substantial and have a significant impact on Small, Medium and Family Businesses.
The Act which has already come into effect in parts, amends workplace relation laws covering the following areas:
- Enterprise bargaining
- Job security
- Gender equality
- Compliance & enforcement
- Workplace conditions and protections
- Workplace relations institutions
Some of these changes have been in effect since 7 December 2022 with the remaining amendments occurring throughout 2023.
Key points from the already in place changes are as follows:
Disclosing pay and workplace conditions
The Fair Work Act now gives employees and future employees new workplace rights to:
- share or not share information about:
- their pay
- their employment terms and conditions that would be needed to work out their pay, such as their hours of work
- ask other employees (with the same or a different employer) about their:
- pay
- employment terms and conditions that would be needed to work out their pay, such as their hours of work.
Please note employees can’t be forced to give this information to another employee if they don’t want to and can exercise these rights even after they leave their employment.
Three new protected attributes were added to the Fair Work Act:
There are new protected attributes at work:
- breastfeeding
- gender identity
- intersex status.
This means employers are prohibited from taking adverse action against current or future employees because of these attributes from 7 December 2022.
Enterprise Agreements
There are significant changes to Enterprise Agreements with the following changes in place from 7 December 2022:
Termination of agreements: The process for terminating an enterprise agreement has changed. These changes started from 7 December 2022 and apply to applications already before the Commission and to new applications.
The Commission has to terminate an enterprise agreement if it is satisfied that one of the following applies:
- the continued operation of the agreement would be unfair for the employees it covers
- the agreement doesn’t, or is unlikely to, cover any employees, or
- all of the following apply:
- the continued operation of the agreement poses a significant threat to the viability of the business
- terminating the agreement is expected to reduce the risk of terminations of employment due to redundancy, insolvency or bankruptcy
- if the agreement has terms about termination entitlements, the employer or employers it covers guarantees the termination entitlements to the Commission.
Errors in enterprise agreements:
The Commission will have new powers to correct errors in enterprise agreements on its own initiative or on application by an employer, employee or union covered by the agreement. The Commission will have the power to decide how these corrections are made to an agreement.
Initiating bargaining:
There are changes to how bargaining for a new agreement can be initiated. In certain circumstances, an employee can now initiate bargaining by writing to their employer via a bargaining representative. The Commission can make a bargaining order following a request, even where the employer has refused to agree to bargaining.
Zombie agreements
All agreements made before the commencement of the Fair Work Act that are still in operation will automatically ‘sunset’ (or terminate) on 7 December 2023 (which is 12 months after these changes commenced). These agreements, commonly known as ‘zombie agreements’, include:
- Agreement-based transitional instruments
- Division 2B state employment agreements
- Enterprise agreements made between 1 July 2009 and 31 December 2009.
Job Ads
From 7 January 2023, job advertisements (ads) can’t include pay rates that would breach:
- the Fair Work Act, or
- a fair work instrument (such as an award or enterprise agreement).
This means that job ads can’t include pay rates that undercut employees’ minimum entitlements.
Employers advertising pieceworker positions where the employee would also be entitled to a periodic rate of pay (for example an hourly or weekly rate of pay) need to:
- specify the periodic pay rate that applies, or
- state in the ad that a periodic pay rate will apply.
These requirements apply from 7 January 2023, regardless of when the ad was originally posted. This means that even if the ad was posted in 2022, the requirement applies to that ad from 7 January 2023.
For more information on all the changes, contact us at 5331 1734 or visit www.fairwork.gov.au
We will continue to keep you updated as each change takes place and what that may mean for your business.
