Proposed changes to employment and industrial laws: what employers need to know

The proposed amendments to the Fair Work Act 2009 (Cth) would have significant consequences for most employers across Australia. Employers should be aware of what they’ll need to do if the changes become law. We outline the proposed changes below.

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 Proposed amendments

What this means for employers

Prohibiting pay secrecy

Protected rights for employees to discuss (or not discuss) remuneration details and associated Ts and Cs Pay secrecy terms are expressly prohibited and void at law Review and update all employment agreements to ensure they do not contain pay secrecy terms in any form. Train managers and supervisors in the new employee rights and employer obligations

Prohibiting sexual harassment in connection with work

New prohibition of sexual harassment in Fair Work Act New powers for FWC to resolve disputes over sexual harassment in work, with civil proceedings rights if the FWC cannot resolve dispute Employers would need to update policies and procedures dealing with sexual harassment, revisit training, to ensure policies and training reflect and apply the new laws

New protected attributes

Three further protected attributes—breastfeeding, gender identity and intersex status— would be added to the existing provisions that provide protections against discrimination. Discrimination policies and procedures would need to be reviewed and updated, to ensure they include the new protections. Staff training should also reference the new protected attributes

Fixed term contracts to be (mostly) prohibited

Fixed term contracts prohibited if for a period of two or more years (including extensions) or on a contract which may be extended more than once. Civil penalties can be imposed for breaching the prohibition. Employers would need to review all their fixed term contracts, with assistance from employment lawyers, and carefully replace any unlawful arrangements. Employers should seek legal advice from employment lawyers to identify whether exceptions apply or could be used. All fixed term contract templates and recruitment processes should also be reviewed 

Flexible work

Employees would be able to request flexible work arrangements in more circumstances, including situations where an employee, or a member of their immediate family or household, experiences family and domestic violence. Employers would have expanded obligations to discuss and respond to requests for a flexible work arrangement. Civil penalties can be imposed for breaching the laws.

Employers would need to update flexible work policies Employers would have to update flexible work policies to ensure they reflect the new circumstances where employees can request the arrangements and employer obligations. Managers need to be trained in the new obligations.

Changes to enterprise agreement laws

Changes would be implemented for termination of enterprise agreements (making it harder to do), dealing with errors in enterprise agreements, giving more powers to the FWC to deal with bargaining disputes, seeking to de-escalate disputes before industrial action is taken and after industrial action has been authorised, and giving longer periods of time to commence industrial action.

Employers would need to be aware of the new laws The amendments would affect the way employers approach termination of enterprise agreements, bargaining for new agreements and responding to protected industrial action. Employers would need to be aware of the new laws and seek advice from employment lawyers if unsure of their rights and obligations.

Prohibiting employment advertisements with pay rate that would contravene the Act

Employers would be prohibited from advertising employment at a rate of pay that would contravene the FW Act or a fair work instrument. Employers would need to review their recruitment and job advertisement processes Employers would need to review their recruitment and job advertisement processes to ensure they know what they cannot put in an advertisement.

Multi-enterprise bargaining

Employers would be subject to a new form of multi-enterprise agreements, to be known as cooperative workplace agreements. These cover multiple businesses and their employees, and would potentially affect the rights and obligations of a large number of individuals. They won’t extend across entire industries but could include large numbers of employers in particular sectors or areas.

Employers need to understand who would represent their interests in multi-enterprise bargaining

Employers would need to ask their relevant industry association (if any) about the industry association’s proposed approach to representation in multi-enterprise bargaining. The employer should be aware of what can happen if employees or unions propose to have the employer included as an employer covered by the agreement, and when they may face industrial action.