Secure Jobs, Better pay changes: what to do about it
The Fair Work Amendment (Secure Jobs Better Pay) Act 2022 received Royal Assent on 6 December. The changes will become law progressively over the next year. Significant changes relating to prohibitions on pay secrecy and sunsetting of “zombie” agreements are already law. The new prohibition regarding sexual harassment at work will come into effect 6 March 2023, whilst further changes regarding enterprise agreements and flexible work arrangements will (generally) apply from 6 June 2023. The prohibitions regarding certain fixed term contracts will not apply until 6 December 2023, or an earlier date fixed by proclamation.
As employers wade through the considerable detail in the Act, the obvious questions is: what do we do about it? The table below sets out our suggestions.
|Significant change in laws||What to do about it|
|Prohibiting pay secrecy
An employee may disclose or not disclose their remuneration details or related information (eg hours of work)
An employee may ask another employee the other employee’s remuneration details.
These rights are enshrined as workplace rights, so employees cannot be treated adversely for exercising them.
A term of an enterprise agreement or a contract of employment has no effect to the extent the term is inconsistent with these provisions.
An employer will break the law if it enters into a new contract of employment that includes a term that is inconsistent with these rights. . For example, a term prohibiting the employee from disclosing their remuneration details or related information (e.g. hours of work).
|Employment contracts that define “Confidential Information” to include employee remuneration (or contain other prohibitions on disclosure of remuneration) will have to be amended.
Do not treat employees adversely because they exercise these rights to disclose, not disclose or ask another employee about remuneration. Ensure new contracts do not contain the prohibited terms.
|Flexible work arrangements
Requests for flexible work arrangements can only be refused if the employer has
There are also additional requirements for written responses. These must set out the particular business grounds of refusal and set out any changes in the employees work arrangements that can be accommodated.
|Declining requests for flexible work arrangements will have to be a lot more process driven and in line with the Act.
It will be important to ensure business grounds for refusal are explained in detail an in writing.
There will be an express prohibition on sexual harassment in connection with work. The prohibition would apply broadly to protect ‘workers’, (using the broad meaning from WHS legislation), including prospective workers.
|Employers will have to re-double their efforts to prevent sexual harassment, by adopting a risk management approach that seeks to identify hazards and implement control measures, such as
Zombie agreements, that is, workplace agreements made before the Fair Work Act 2009 (and during the bridging period of 1 July to 31 December 2009) will automatically terminate on 6 December 2023.
Employers will also have to give employees notice of automatic sunsetting by 6 May 2023.
Changes to the types of enterprise agreements, the current low paid bargaining stream will be replaced by the supported bargaining stream.
New co-operative agreements will become a type of multi-employer agreement.
An employer will be able to apply to be party to a co-operative agreement after it is made, but their employees will have to vote it up.
Once a supported bargaining agreement is made unions will be able to apply to the Commission for the agreement to cover (or rope in) additional employers.
|Employers will also have to give employees notice of automatic sunsetting of zombie agreements by 6 May 2023.
Employers who have zombie agreements may wish to replace them with another EA before they sunset.
Employers who are the subject of an application to rope them into a supported bargaining agreement will have to respond promptly if they wish to resist.
Employers without existing enterprise agreements who want to avoid the risk of being roped-in to a supported bargaining agreement should consider making an enterprise agreement with their employees.
|Fixed term contracts
A person will contravene the Act if:
a) they enter into a contract of employment that includes a term that provides the contract will terminate at the end of a period; and
b) the period of the contract is greater than two years (and in certain other circumstances)
Some fixed term contracts are excluded from this regime, including:
a) Employees engaged to perform only a distinct and identifiable task involving specialised skills;
b) The employee earns above the high income threshold
c) The employee is engaged under the contract to undertake essential work during a peak demand period;
d) The contract is funded in whole or part by Government funding and the funding is payable for a period of two years or more and there are no reasonable prospects the funding will be renewed.
If a contract of employment is entered into in contravention of the provisions that contract will have no effect.
Employers will also have to provide a fixed term contract information statement to employees who enter into fixed term contracts.
|Employers who use term contracts for employees will have to review their practices in line with the changes.
In particular, they will have to determine if an exemption applies. If not, they will need to cease using the fixed term contracts.
Employers will have to provide a fixed term contract information statement to employees who enter into fixed term contracts.
There will be a second tranche of changes to the Act, most likely in the New Year. As the environment in which employers operate becomes more complicated, employers should be pro-active in responding to the changes, so that they can ensure compliance as the changes become law over the next year.