Fair Work Legislation Amendment (Secure Jobs Better Pay) ACT 2022

Is your Business Ready for the Employment Law Changes?

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 received royal assent on 6 December 2022 and a number of changes will come into force this year.  Below is a summary of the key changes relevant to drafting employment contracts:

Pay Secrecy Prohibition (commenced 7 December 2022)

• Employees can no longer be obliged to keep their renumeration a secret.

• Terms of all existing employment contracts which are inconsistent with the prohibition on pay secrecy have no effect.

• Employers that enter into any new employment contracts that contain a clause that is inconsistent with the pay secrecy prohibition can be liable for civil remedy ($6,600 to $660,000).  It is important to carefully review your precedent employment contracts and remove any pay secrecy provisions.

Flexible Work Requests (commencing 6 June 2023)

• Employers will now be required to respond to requests for flexible working arrangements within 21 days and show reasonable business grounds (among other matters) for refusing requests, which may include that the new working arrangements would be too costly, impractical or result in significant loss in efficiency or productivity.

• A similar regime will be adopted in relation to requests to extend unpaid parental leave.

• Employers who receive requests for flexible working arrangements need to carefully consider whether the request can be granted and ensure their response complies with the new requirements.

• Employees may submit disputes in relation to requests for flexible work to the FWC (after attempting to resolve the dispute with employer).

Fixed Term Contracts (commencing 6 December 2023)

• After 6 December 2023, it will be illegal to enter into fixed term contracts for a period greater than two years unless an exception applies.

• Anti avoidance provisions mean the following are also prohibited:

  • contracts in which the sum of the fixed period and any extension is greater than 2 years; or

  • contracts which contain more than one option to renew;

  • arrangements involving several contracts for substantially similar work, the sum of the period for which is greater than 2 years;

  • delaying re-engaging an employee or engage another employee to perform the same or similar work and changing the nature of the employee’s work.

• Exceptions include employing casuals, providing training, addressing requirements for essential work during peak demand periods eg seasonal labour, to cover the absence of another employee including for parental leave and emergency circumstances.

• The effect of the contravention of the provision is:

  • the employer commits an offence and may be liable for a civil penalty; and

  • the fixed term of the contract has no effect and the employment is rendered permanent, meaning that the provisions applicable to permanent employees, like unfair dismissal, may apply.

• All new fixed term employees need to be provided with a Fixed Term Contract Information Statement.  Failure to do so may expose an employer to civil penalties.

 It is important to carefully review contracts to ensure they remain compliant and to consider these changes when drafting any new employment agreements or dealing with any requests by employees for flexible work.  

Contacts

Keira Nelson Olga Kubyk

Partner Solicitor

PH: +61 2 9230 9440 PH: +61 2 9230 9408