In the second half of 2023, the (new) Commonwealth Government went straight to work on making amendments to the Fair Work Act. The Act controls the employment conditions of Australian workers and what businesses need to do when employing staff. At least some the changes will impact on almost all businesses on regular basis and are some of the biggest employment law changes for many years.

Businesses need to be across what these changes mean. This article summarises the basics of the main changes for businesses and managers.

Flexible working arrangements

Under current laws, employees can ask for flexible work hours, but employers don’t have to agree. This changes from 6 June this year. From then, employers will be need to try to reach agreement with specific, eligible employees when they request flexible work hours or arrangements. If no agreement can be settled on, employees will be able to go to the Fair Work Commission to reach agreement by conciliation and, where that fails, receive a binding decision through arbitration. That means workers will be able to take action against their employer if a request for flexible work isn’t agreed to.

Multi-employer bargaining

Before these changes, workers could only group together with other employees in their workplace own workplace for the purposes of bargaining. This is set to change. With these changes, employees who work for different businesses may be able to negotiate together when bargaining for conditions in an enterprise agreement. The businesses need to be similar (for example, different cafes or panel beating businesses), and there are certain small business exemptions.

The Fair Work Commission will be able to authorise workers with common interests in businesses which are “reasonably comparable” to bargain together, where it is in the public interest.

Importantly, this will not affect small businesses. Also, for mid-sized business there is a simple way to avoid being dragged into an unwanted multi-employer bargaining process. Employers can initiate a conventional bargaining process with their workers.   For many businesses, this will not include unions in the process (where there are no members). If this is something that you think may apply to you, we can help.

New positive obligations on an Employer

In line with recommendations made in the Respect@Work Report, new measures will be introduced placing a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, within workplaces. This means that employers will be required to continuously assess and evaluate whether they are meeting the requirements of the duty.

Fixed term contracts

New provisions will be introduced in December 2023 that will limit the capacity of employers to continually rollover the fixed term employment agreements beyond 2 years. There are some exceptions. However, in general, employees will no longer be able to employ a worker on a fixed term contract for more than 2 years, or extended a contract more than once.

Pay secrecy

Employers will no longer be allowed to prevent employees discussing their pay and conditions. This includes employees disclosing their remuneration to others or discussing things such as, hours of work, or other employment terms and conditions which could be used to work out their colleagues pay. The Fair Work Ombudsman will be able to take action for alleged breaches of the new provisions, including the ability to take employers to court for alleged breaches and the impose penalties.

Domestic violence leave

An employee’s entitlement to access domestic violence leave will be extended to 2 weeks and changed from unpaid to paid leave. This will apply to businesses other than small businesses, and starts from February 2023. It will extend to include small businesses later in the year. Businesses also need to be aware that there are also new rules for employees’ payslips relating to the new entitlement.

Termination of any pre-Fair Work Act collective agreements

From December 2023, certain industrial (employment) agreements made before the Fair Work Act 2009, which are still in operation will be automatically terminated. These have been referred to as “Zombie agreements”. They include Enterprise agreements which were made during the bridging period

before the introduction of the Fair Work Act which only had the threshold of the ‘no disadvantage test’.

Reach out for help

All these changes are manageable for employers that seek help and guidance. We can step you through the processes that you can include in your business to sidestep avoidable consequences from these significant alterations to your obligation as an employer.

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This article was prepared by Hicksons Lawyers for Australian Sign & Graphics Association.

Need legal and business advice? Warwick Ryan of Hicksons Lawyers can provide ASGA members with free Australia-wide legal advice. Conditions apply. Contact Michael Punch at [email protected] for more details.