On 6 December 2022, some important reforms were introduced to Australia’s workplace relations system. These changes are significant for employees because they introduce several new rights and benefits. No doubt, one or more of these new rights will become relevant to you at some point during your professional career, so they are worth being familiar with.
Some of the most significant reforms for employees include:
- changes to pay secrecy clauses in employment contracts;
- changes to what employers can include in job advertisements;
- changes to workplace flexibility rules; and
- changes to the use of fixed or maximum term contracts.
These changes are set out in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.
Read on to find out what your employer can and cannot do when it comes to pay secrecy, job ads, workplace flexibility and more.
Pay Secrecy – When can you disclose your pay details or workplace conditions
One of the new changes involves the introduction of a workplace right of employees and future employees to share (or not share) information about pay and related employment terms and conditions.
Also new is the introduction of a workplace right to ask other employees (who could work at the same workplace or a different place of work entirely) about their pay and related employment terms and conditions, such as their hours of work.
Effectively what this will mean moving forward is that employees are, to some degree, free to disclose details about their salary, remuneration or pay details without the risk of repercussions from their employer for doing so.
Previously, most employees would be prohibited from disclosing these details because of a term or condition in the employment contract that swore you to secrecy. If someone asked you how much you earned or what type of salary they might receive if they got a job at your workplace, you would usually have to respond with “sorry, I can’t disclose details about my pay or else I might get disciplined or fired.”
Moving forward you will have the right to choose how you respond in these scenarios. Of course, you could still choose not to disclose these details if you wish. You cannot be forced to provide this information if you do not want to. The ability to choose not to disclose pay details is also a protected workplace right under the new laws.
So, what do these changes mean for you moving forward?
From 7 December 2022:
- if you enter into a new employment contract; or
- you have an existing employment contract that does not make any mention of pay secrecy obligations that are inconsistent with the new laws; or
- you have an existing employment contract that does have pay secrecy terms in it that are inconsistent with the new laws, but your contract is varied after 7 December 2022, then the new workplace rights will apply to you.
We explain these different categories some more below.
The most important point to be aware of is that your employer cannot take adverse action against you because of these workplace rights or in an attempt to prevent you from exercising these rights in some way.
If you want to learn more about what adverse action is or what a workplace right is, check out our blog.
Employment contracts entered into after 7 December 2022
If you commence employment or sign a new employment contract after 7 December 2022 and it contains a pay secrecy clause, then any such clause that is inconsistent with the new workplace rights will not enforceable. In other words, you do not have to comply with it.
From 7 June 2023, pay secrecy clauses cannot be included in your employment contract or agreement. Employers who fail to comply with this requirement can face significant and costly penalties.
The Fair Work Ombudsman has the power to commence court proceedings against your employer if they do not comply.
Employment contracts entered into before 7 December 2022
The new workplace rights will also apply in situations where you entered into an employment contract before 7 December 2022 if the employment contract does not contain a pay secrecy clause or term.
If your employment contract does contain a pay secrecy clause, then it will continue to operate and apply until your employment contract is varied. When the variation occurs, the pay secrecy terms will no longer have any effect and will not be enforceable from that point in time. Any such change will trigger the application of the new laws.
Modern Awards or Enterprise Agreements after 7 December 2022
If your employment is covered by a Modern Award or an Enterprise Agreement, the pay secrecy term will have no effect and will not be enforceable after 7 December 2022. This is the case regardless of when the Award was made or when the Enterprise Agreement was approved.
How can Rubix Legal help with Pay Secrecy issues?
If you are unsure whether you have a pay secrecy term in your employment contract, Award or Enterprise Agreement, we can help. We’ll help you identify the source documents of your employment and explain what the terms mean. You’ll understand what pay secrecy terms your employer is seeking to impose and whether they apply to you. You’ll learn about your protected workplace rights and what options are available to you if your employer breaches your workplace rights.
Job Ads – What can you expect in an advertisement
Another change that has been introduced through the recent reforms relates to job ads.
From 7 January 2023, any job advertisements that advertise pay rates that are either below the minimum wage or seek to undercut employees’ minimum entitlements as prescribed by the Fair Work Act, or an Award or Enterprise Agreement, are unlawful.
This applies to all ads irrespective of when they were posted. So, for example, if an ad was posted in December 2022, the new laws will still apply.
There are now a series of specific details that employers must include in their job ads, in order to comply with the new laws or else face possible prosecution from the Fair Work Ombudsman.
New flexible work rights for pregnant employees
One of our personal favourite changes to the workplace laws relates to flexible work arrangements.
From 6 June 2023, two more types of employees will have rights to request flexible work arrangements:
- Employees who are pregnant; and
- Employees (or a member of their immediately family or household) who is a victim of or is experiencing domestic violence.
What can you expect from your employer when seeking a flexible work arrangement?
Under the new laws, employers will be required to satisfy a number of different requirements before they can dismiss or refuse a request from a pregnant employee (or a domestic violence victim) from a flexible work arrangement.
Employers must:
- discuss the request with the employee
- make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances
- consider the consequences for the employee if their request is refused
- if the request is to be refused, provide a written response to the employee’s request that includes:
- an explanation of the reasonable business grounds for refusing the request and how these grounds apply to the employee’s request
- other modifications the employer is willing to make that would accommodate the employee’s circumstances (or if there are no modifications that can be made, then state so)
- information about referring a dispute to the Fair Work Commission.
If, during the discussion of the employee’s request it transpires that the parties have agreed to make changes to the employee’s working arrangements that are different to what the employee initially requested, the employer needs to confirm these agreed changes in writing within 21 days of the request.
The Fair Work Commission will be able to hear and make orders about certain disputes about flexible working arrangement requests if the parties can’t resolve the dispute at the workplace level. For example, if an employer fails to respond to a request within the required time frame of 21 days, or if an employer refuses an employee’s request.
Quite significantly, the Commission will have the power to commence litigation if an employer breaches the new laws pertaining to flexible work arrangements for pregnant employees and/or employees who are victims of or is experiencing domestic violence.
While these changes are positive, they do not commence until 6 June 2023. In the interim, if you are pregnant and needing some flexibility in the workplace as a result, you may be wondering what rights you currently have. Depending on the circumstances, there is a potential range of options you could explore. Contact us to find out more.
Fixed terms contracts – when can they be used
Also new to the employment relations scene are new rules for the use of fixed term contracts.
A fixed term contract is an agreement to work for a certain period of time, with a specific start and end date.
Historically, there have always been a number of issues with the use of fixed term contracts because they provide employers with greater scope to avoid certain employment law obligations. For instance, an employee engaged on a fixed term contract does not enjoy the same rights and benefits as an employee engaged on a permanent basis.
From 6 December 2023, employers will no longer be able to engage an employee on a fixed term contract if the contract is for a great period of 2 or more years. In other words, they must be for a shorter duration.
Employers will also be prohibited from extending a fixed term contract more than once. This is to address the issue of employers making use of a series of consecutive fixed term contracts to avoid liability for certain employment entitlements.
Employers will also be prevented from using a fixed term contract that is a new contract:
- that is for the same or a substantially similar position as previous contracts
- with substantial continuity of the employment relationship between the end of the previous contract and the new contract, and either:
- the total period of the contracts is 2 or more years,
- the new contract can be renewed or extended, or
- a previous contract was extended.
Like most things, there will be some exceptions to these new rules. Such as where the employee is covered by a Modern Award that specifically allows for the use of fixed term contracts. Or where the employee earns over the high-income-threshold, or the role is part of a specific training arrangement.
Once the new law takes effect (i.e. from 6 December 2023) it will be mandatory for employers to provide fixed term employees with a specific statement prepared by the Commission, terms a Fixed Term Contract Information Statement.
If there are any disputes about the new rules pertaining to the use of fixed term contracts, those disputes can be brought to the Commission for determination. Alternatively, employees will also be able to go straight to Court if they wish.
At Rubix Legal we frequently assist employees with issues relating to workplace flexibility, contractual issues and pay secrecy clauses. We take the time to listen to your needs and assist you with finding your voice in the workplace. We encourage you to book a consult with us if you have any questions or concerns about your workplace rights.
