Many employment contracts contain provisions requiring employees to keep their remuneration confidential. Under the new provisions, this is no longer allowed, and employees are free to discuss and/or ask other employees about their remuneration.

Pay secrecy terms in current contracts of employment and written agreements will continue to operate, until they are varied or a new contract is entered into, in which case they will no longer have effect.

Review remuneration increase/bonus templates and remove any pay secrecy provisions.

Review your overall remuneration strategy and equity.

All workers (employees, contractors, subcontractors, outworkers, apprentices, trainees, volunteers) and prospective workers will be able to seek remedies via the Fair Work Commission for sexual harassment under the Fair Work Act.

Joint applications will also be allowed (e.g. unions on behalf of a number of employees).

Remedies can include a ‘stop sexual harassment order’ as well as compensation to remedy past harm.

The FWO will also have powers to investigate contraventions by employers in relation to sexual harassment in the workplace and can enforce civil penalties.

1.       Review your existing policy and procedures

2.       Training for staff

3.       Assess avenues available for staff to bring up concerns

4.       Assess your response process and mechanisms to address concerns

5.       Review the culture of your business and ensure leaders model acceptable behaviour

There is a wealth of resources available to support your organisation via the Respect@Work website. See https://www.respectatwork.gov.au

The changes limit the use of fixed term contracts for the same role beyond two years (including renewals) or two consecutive contracts – whichever is shorter.

A range of exceptions are available to allow fixed term contracts beyond these limits when genuinely necessary and appropriate. These include:

·       performing a discrete task for a fixed period,

·       apprentices and trainees,

·       undertaking essential work during a peak demand period (such as a harvest),

·       temporarily replacing another employee on long leave (such as workers compensation leave), or

·       earning above the high-income threshold (currently $162,000)

Review your fixed term contract to ensure that it does not have provisions that allow for multiple renewals or beyond two years.

You will be required to provide a Fixed Term Contract Information Statement (the Statement) to all employees entering a fixed term contract, once the new provisions commence. This will be available via the Fair Work Ombudsman.

The changes to fixed term contracts only apply to new contracts entered into after the commencement of the legislation. However, any contract that was in place prior to the commencement will be counted towards the limits. For example, if an employer enters into a new contract with an employee after commencement, the pre-commencement contract will count towards assessing if there have been more than two contracts.

The amendments:

·       expand the circumstances in which an employee may request flexible work arrangements to include employees who are pregnant as well as situations where an employee, or a member of their immediate family or household, experiences family and domestic violence.

·       Legislates the model flexible working arrangements modern award term to provide a fair and transparent process for responding to flexible working arrangement requests, and

·       allow the Commission to deal with a dispute about a request, including by conciliation, mediation or if necessary mandatory arbitration, in circumstances where employers and employees cannot agree on a solution at the workplace level.

The amendments mean that when an eligible employee makes a request for a flexible working arrangement, you will have an obligation to discuss the request with them. If you refuse a request, you will need to provide reasons in writing. You will also need to consider and inform the employee in writing if there are any other changes in working arrangements the business would be willing to make to accommodate the employee’s circumstances.

While it is unlawful under the Act to pay someone incorrectly, it was previously not unlawful to advertise a job with a pay rate that would breach the Act. This has now changed.

The National Employment Standards in provide eligible employees with an entitlement to unpaid parental leave. An employee taking 12 months unpaid parental leave can request an extension of a further 12 months leave (up to 24 months in total), unless their partner has already taken 12 months of leave.

Previously, the Act contained minimal guidance on how an employer needed to respond to a request for an extension of unpaid parental leave and limited the FWC’s ability to deal with disputes about the reason for refusing a request.

The amendments will mean that when an eligible employee makes a request for an extension of unpaid parental leave, their employer has an obligation to discuss the request with them. If their employer refuses a request, the employer will need to provide reasons in writing. The employer will also need to consider and inform the employee in writing if there is any other period of extension they would be willing to agree to.

Under the previous provisions of the Fair Work Act (2009) Enterprise Bargaining could occur between one employer and the employees of that organisation (single-interest bargaining). At risk of oversimplifying the process, the employer and employees went through an enterprise bargaining process to negotiate an agreement specific to their organisation. This agreement was then submitted to the FWC for approval to confirm the employees were better off overall under the agreement.

The new changes have introduced “common interest employers” who can bargain collectively for a multi-enterprise agreement.

The operations and activities of common interest employers must be ‘reasonably comparable’.

If the business has over 50 employees, the employer needs to be able to demonstrate it is not a common interest employer.

There is some protection for employers who employ fewer than 20 employees, who can only be added to an agreement or authorisation with their agreement.

Employees who perform general building and construction work cannot be covered by a multi-enterprise agreement.

Whilst the implications of these changes will need to play out, we could essentially see a situation where multiple common interest employers are required to bargain collectively to determine the min wages and terms and conditions of employment for their workplace. The impact on industrial action associated with this across a particular sector will be critical to watch closely.

You should familiarise yourself with the changes and the actions you will need to take should you receive pressure or a requirement to bargain.

You should proactively assess your current remuneration strategy and ask yourself whether your employees have an incentive to initiate bargaining.

It will now be more difficult to terminate agreements that have passed their nominal expiry date

In the past the FWC needed to be satisfied that terminating an agreement which had passed its nominal expiry date was not contrary to the public interest, as well as considering the views of the parties to the agreement.

The FWC now needs to be satisfied of one of the following before approving a termination:

• the continued operation of the agreement would be unfair to the employees it covers;
• the agreement does not and is not likely to cover any employees; or
• the continued operation of the agreement would pose a significant threat to the viability of the business, terminating the agreement would reduce the risk of terminations, and the employer gives a guarantee that it will preserve termination entitlements under the agreement.