NewSky Consulting - Fair Work Changes - blog


Mar 9, 2023

Well, 2023 has not only seen a swag of interest rates climbs, there’s also plenty of movement in the land of Fair Work Legislation!

With the recent changes made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, there’s a few things employers will need to review and revise to make sure they remain compliant.

These changes have significant implications for employment contract practices, including new limits on the ability to use fixed-term contracts, a prohibition on pay secrecy clauses, and changes to the processes for dealing with requests for flexible working arrangements.

Fixed-term contracts

If you’re an employer who engages staff on fixed-term contracts, you need to be aware of the new rules taking effect from 6 December 2023. A new section in the Fair Work Act 2009 (Cth) prohibits the use of fixed-term contracts exceeding two years, except in exceptional circumstances.

These changes include a range of ‘anti-avoidance’ provisions to ensure that employers cannot escape the prohibitions by using a series of shorter fixed-term contracts or delaying the reengagement of employees to create a hiatus between contracts. It’s important to note that employers who regularly engage staff on a series of fixed-term contracts will be most affected by these changes.

Pay secrecy

Pay secrecy terms are terms in employment contracts, awards or agreements that are inconsistent with the workplace rights to:

  • share (or not share) information about:
    • their pay
    • their employment terms and conditions that would be needed to work out their pay, such as their hours of work
  • ask other employees (with the same or a different employer) about their:
    • pay
    • employment terms and conditions that would be needed to work out their pay, such as their hours of work.

Employees can’t be forced to give this information to another employee if they don’t want to.

Employees can also exercise these rights even after they leave their employment.

From different start dates, these terms will be banned from being included in:

Confidentiality provisions prohibiting employees from disclosing their remuneration to anyone except family members and personal advisers will no longer be binding. Employees will be entitled to disclose their remuneration to others, and they will also be entitled to request information from others about their remuneration.

Flexible working arrangements

The Fair Work Act contains a right for certain employees to request flexible working arrangements, and employers are obliged to consider those requests. Amendments to section 65, and the insertion of new sections 65A to 65C, will mean that employers may soon face the prospect of Fair Work Commission orders that they grant flexible working requests. These amendments take effect six months from assent (6 June 2023).

It’s important to note that the right to request flexible work is still limited to employees who are over 55, living with a disability, caring for infants or school-aged children, carers within the meaning of the Carer Recognition Act 2010 (Ch), or experiencing themselves or caring for someone experiencing family violence. Employers are still entitled to refuse requests on reasonable business grounds.

What should Employers do?

Here are some suggestions on what Employers should do to adapt to the recent changes:

  • Employers who use fixed-term contracts should review their practices, to be ready for the new rules taking effect from 6 December 2023.
  • Employers who regularly engage staff on a series of fixed-term contracts will be most affected by these changes. They should reconsider their practices if this is used to avoid the need for rigorous performance appraisal.
  • Employers should remove pay secrecy clauses from their employment contracts, as they will no longer be binding.
  • Employers who have not already established protocols for considering and responding to requests for flexible working arrangements should take the time now to develop those protocols to ensure they’re not caught out.

It’s essential to keep up-to-date with the changes to avoid penalties and ensure a fair and equitable workplace for all employees. And, if you need help with your Human Resource compliance – do reach out.

Want to read more about the changes visit the Fair Work website.

Disclaimer: This blog provides a summary only of the subject matter covered without the assumption of a duty of care by NewSky Consulting. No person should rely on the contents as a substitute for legal or other professional advice.