Important amendments to the Fair Work Act
On 7 December 2022, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amendment Act) came into effect. This article provides an overview of some of the changes introduced through the Amendment Act that come into operation in the upcoming months.
Sexual harassment has always been prohibited under equal opportunity laws; however, the Amendment Act introduces a prohibition against sexual harassment in the FW Act. The prohibition sets out that a person must not sexually harass another person who is:
- a worker in a business or undertaking; or
- seeking to become a worker in a business or undertaking; or
- a person conducting a business or undertaking.
The terms ‘worker’ and ‘person conducting a business or undertaking’ are aligned with definitions in work health and safety (WHS) laws and extend beyond an employer and employee. This means, a ‘worker’ also includes a contractor, a subcontractor, a trainee, a student on work experience or a volunteer.
An employer could be held vicariously liable for a person who sexually harasses another person if the alleged harasser is an employee. If an employer can prove that they took all reasonable steps to prevent the sexual harassment, they would not be held vicariously liable.
These provisions will commence on 6 March 2023.
The Amendment Act prohibits employers from entering contracts of employment that include pay secrecy clauses. In addition, the Amendment Act provides employees with new protected workplace rights to disclose or not disclose their pay, and to ask other employees about their pay.
The pay secrecy provisions commenced on 7 December 2022, however detailed transitional provisions apply to existing contracts of employment and contracts entered into between 7 December 2022 and 7 June 2023.
These workplace rights expand the General Protections under the FW Act, meaning that an employer cannot take adverse action against an employee who exercises, or chooses not to exercise, a workplace right. An employer may face financial penalties if they breach the pay secrecy prohibition. The penalties are currently $66,600 per contravention, or $660,000 for a serious contravention.
Family and domestic violence leave payslip provisions
In one of our previous articles, we outlined the new paid family and domestic violence leave provisions inserted into the National Employment Standards (NES). If an employee takes paid family and domestic violence leave, an employer will be required to provide payslips that do not contain any information that indicates the employee has taken that form of leave. The purpose of this is to protect an employee who is accessing the entitlement from further harm if it becomes known by the person harming them that they have accessed paid family and domestic violence leave.
This provision will commence in line with the commencement of the new NES entitlement, being 1 February 2023 for employers who are not small employers, and 1 August 2023 for small business employers (i.e., those that employs fewer than 15 employees).
More information and fact sheets regarding the amendments are available on the Department of Employment and Workplace Relations website:
- The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill - Department of Employment and Workplace Relations, Australian Government (dewr.gov.au)
- Prohibiting sexual harassment in the Fair Work Act - Department of Employment and Workplace Relations, Australian Government (dewr.gov.au)
- Prohibiting pay secrecy clauses - Department of Employment and Workplace Relations, Australian Government (dewr.gov.au)