The Secure Jobs, Better Pay Bill was passed by the Parliament on 2 December 2022. This article discusses a few changes proposed by the Bill.
Prohibiting pay secrecy
It will be a workplace right under the Fair Work Act 2009 (the Act) for employees to disclose, or not disclose their remuneration or any terms and conditions of employment that are reasonably necessary to determine remuneration outcomes to any other person (including their colleagues or former employees). They are also entitled to ask any other employee (whether employed by the same employer or a different employer) about the other employee’s remuneration.
If your current employees’ contract of employment includes a pay secrecy term, the term would have no effect. You should ensure that new employment contracts and written agreements do not contain pay secrecy terms.
Prohibiting sexual harassment in connection with work
It will be unlawful under the Act to sexually harass workers and prospective workers. The Act provides remedies if that happens.
Principals / Practice owners would be vicariously liable for acts of their employees or agents who commit sexual harassment, unless they could prove that they took all reasonable steps to prevent the employee or agent from doing the unlawful act. Reasonable steps could include staff induction / training on unacceptable conducts, independent investigation if you receive a complaint and take disciplinary action against the perpetrator for deterrence purposes.
The Fair Work Commission (FWC) would be able to make stop sexual harassment orders to protect applicants from future harm. The FWC could also deal with a sexual harassment dispute if it arises.
Fixed term contracts
Fixed-term contracts that are greater than 2 years or renewable contracts so that the employee is employed for more than 2 years will be prohibited under the Act, in order to promote job security. Such term may only be included in some circumstances, such as where a modern award permits the term.
If for instance you offer a 3 years fixed-term contract, the term that provides the contract will terminate at the end of 3 years is taken to have no effect. That means you may still need to provide notice of termination if you want to terminate the contract on the expiry date.
The Fair Work Ombudsman will prepare a Fixed Term Contract Information Statement, which must be given to certain current and prospective employees.
Advertising rates of pay
Employers need to be cautious when advertising a job vacancy. If an employer advertises a job vacancy at a rate of pay that is below the minimum rate, the employer may be subject to a penalty.
Flexible work arrangement request
The circumstances in which an employee may request flexible work arrangements will be expanded, to include situations where an employee, or a member of their immediate family or household, experiences family and domestic violence.
Enterprise agreement and Better Off Overall Test (BOOT)
The BOOT will be amended to ensure it is simple, flexible, and fair, by:
- requiring the FWC to give consideration to the views of specified persons, including primary consideration to any common views expressed by the specified bargaining representatives, when applying the BOOT;
- applying the BOOT as a global assessment (i.e. not a line-by-line comparison between the proposed agreement and relevant modern award);
- requiring the FWC to only have regard to patterns or kinds of work, or types of employment, that are reasonably foreseeableat the test time;
- enabling the FWC to directly amend or excise a term in an agreement where necessary to address a concern that it does not meet the BOOT;
- enabling the BOOT to be reassessed in limited circumstances, including if there has been a material change in working arrangements or the relevant circumstances were not properly considered during the approval process (reconsideration process).
There will also be a guarantee of termination entitlements if enterprise agreement is terminated in certain circumstances after its nominal expiry date, where the employer would make an undertaking (to be in force for a certain period of time) that preserve the protected employees’ redundancy entitlements, providing they were more beneficial than those that would otherwise apply under the NES.
This Circular is produced for guidance purposes only and is not a substitute for legal advice. Legal advice should be sought for individual circumstances. For tailored advice for your Practice, please contact us at [email protected].