2023 will see the staggered roll out of three new pieces of legislation set to significantly impact both employers and employees of all business types. This article deals with some of the key changes implemented by this legislation that we consider crucial for businesses to take into consideration and enact. These key changes relate to matters relating to:
- family and domestic violence leave entitlements;
- wage growth and job security; and
- discrimination, human rights and gender equality.
Legislation
The following legislation received royal assent in late 2022:
- The Fair Work Amendment (Paid Domestic and Violence Leave) Act 2022 (Cth) (Paid Domestic and Violence Leave Act);
- The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act), and
- The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect at Work Act).
The passing of this legislation has resulted in new laws taking effect, as well as the introduction of further laws to take effect throughout 2023. Each piece of legislation will be dealt with separately below.
Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth)
On 9 November 2022, the Paid Domestic and Violence Leave Act was passed. As a result, full time, part time and casual employees are or will be (subject to the dates below) entitled to 10 days of paid family and domestic violence leave in a 12 month period. This full 10 day leave entitlement replaces the previous entitlement of 5 days of unpaid leave and:
- updates annually;
- will be available up front;
- will not accumulate from year to year if not used by the employee; and
- comes into effect as follows:
– from 1 February 2023 for non-small business employers (less than 15 employees); and
– from 1 August 2023 for small business employers.
The changes also impact how paid family and domestic violence leave must be recorded on pay slips, such that it is recorded as ordinary time worked, overtime or allowances, rather than a type of leave such as ‘miscellaneous’ or ‘other leave’, unless the employee requests for it to be recorded as a period of leave.
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)
On 6 December 2022, the Secure Jobs, Better Pay Act was passed, introducing a number of changes aimed at promoting wage growth, job security as well as modernising and ensuring a fairer workplace relations system for employees. Some key changes include the following:
- Abolition of the:
– Registered Organisations Commission (the regulator of unions and employer groups); and
– Australian Building and Construction Commission (the workplace regulator of the commercial building and construction industry).
- Prohibition of:
– pay secrecy clauses in employment agreements, and the creation of a workplace right allowing employees to question each other in relation to remuneration and conditions of employment;
– fixed term employment contracts (note some exceptions apply) that:
– are greater than 2 years; or
– allow renewal options that would see the fixed term exceeding 2 years; or
– are issued consecutively for the same or substantiality similar work where the total period is more than 2 years; and
– job advertisements from including pay rates that would breach fair work legislation or relevant provisions contained in a modern award or enterprise agreement.
- Expansion of the scope for employees to make requests for flexible working arrangements to include where the employee, or a member of their immediate family or household experiences family or domestic violence. Employers will have obligations to provide reasons for refusing flexible working requests, and in the event of a dispute, the Fair Work Commission (FWC) has increased powers to arbitrate disputes concerning flexible working arrangement applications.
- Various amendments to the enterprise agreements and bargaining including:
– the FWC having the power to intervene and make workplace determinations regarding bargaining disputes;
– simplification of the better off overall test;
– provision of broader access to both single and multi-employer enterprise bargaining and reducing bargaining limitations.
- Enhancement of the small claims procedure process for employment disputes, by increasing the cap for claims to be heard from $20,000 to $100,000.
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth)
On 12 December 2022, the Respect at Work Act was passed, introducing a number of variations in relation to the laws of discrimination, human rights and gender equality. In summary, these variations strengthen the legal framework relating to sexual harassment, discrimination and victimization within the workplace. The purpose of the changes are aimed at ensuring safe, inclusive and respectful workplaces for all employees.
Some key changes include the:
- Creation of a new positive duty on employers and persons conducting a business or undertaking to take reasonable and proportionate measures to prevent and eliminate sex discrimination and sexual harassment conduct that creates a hostile work environment or acts of victimisation against others. Further to this, the grant of further monitoring and enforcement powers to the Australian Human Rights Commission (AHRC) in respect of this positive duty obligation.
- Expansion of the anti-bullying jurisdiction of the FWC to allow it to make orders to stop sexual harassment at work (similar to the stop bullying regime of the FWC).
- Clarification that sexual harassment in connection with an employee’s employment can be valid grounds for dismissal.
- Extension of the time limitation from 6 months to 24 months for employees to lodge complaints to the AHRC from when the alleged unlawful conduct occurred.
It is important to note that the some of the above changes referenced have already commenced, whilst other changes are scheduled to come into effect on different dates throughout 2023.
What to do next
To ensure that your employment practices and agreements are in line with recent legislative updates, we recommend a review all your current and future employment agreements and workplace policies. If you require any assistance with this, please contact us.
