Fair Work legislation changed in early December – what do the changes mean for you?

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) was made into law on 6 December 2022, resulting in a breadth of employment and industrial relations reforms which will be rolled out progressively over 2023. 

 

A number of these changes will impact the early childhood education and care (ECEC) sector, with some changes already in play. 

 

Pay secrecy – already operational

 

Pay secrecy clauses are now unlawful, and as such an employment contracts which were entered into before 7 December 2022 which specify pay secrecy clauses have been rendered unenforceable (on pay secrecy specifically). 

 

Any new employment contracts issued to employees from 8 December 2022 onward should not include pay secrecy provisions.  Employees now have a ‘workplace right’ to ask other employees about their pay or disclose their salary to other staff members. 

 

In addition, it will be unlawful to advertise a rate of pay that is not compliant with an applicable award or agreement. 

 

Changes to flexible work and unpaid parental leave requests – in play from June 6 

 

Effective 6 June 2023 the criteria for considering and declining flexible working requests under section 65 of the Fair Work Act 2009 (Cth) will change.  

 

Currently, an employee can request a flexible working arrangement under the Fair Work Act when they have had 12 months of service and they:

 

• are the parent or have responsibility for the care of a child who is school-aged or younger 
• are a carer (under the Carer Recognition Act 2010) 
• have a disability 
• are 55 or older 
• are experiencing family or domestic violence; or 
• provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence. 

 

These criteria will continue to apply, however under these changes, an employer who receives a request for flexible working arrangements will now need to:

 

• meet with the employee and genuinely try to reach an agreement. 
• have regard to the consequences of any refusal of the request on the employee; and 
• provide detailed reasons for any refusal (which must still be based on reasonable business grounds); and 
• inform the employee of any alternative working arrangements you would be willing to make instead to accommodate the employee’s circumstances. 

 

Similarly, with unpaid parental leave extension requests (over 12 months), employees will have their request granted unless there are reasonable business grounds for the employer to refuse the request.  

 

Where an employer has refused a request by an employee for a flexible work arrangement, or the employer has failed to respond to the request within 21 days, and discussions have failed to resolve; the employee may refer the dispute to the Fair Work Commission. 

 

Fixed-term contracts are limited to two years from 6 December 2023

 

Effective 6 December 2023, subject to certain exceptions, it will be unlawful for an employer to enter into a fixed-term contract with an employee where: 

 

• the term of the contract is greater than two years; or 
• the original term of the contract plus any renewal period is greater than two years; or 
• there is an option or right to renew the contract more than once (irrespective of the period of the original term and the term of any renewals). 

 

The exceptions, where fixed-term contracts may continue to be used, include where following: 

 

• the employee is engaged to perform only a distinct and identifiable task involving specialised skills. 
• the employee is a trainee engaged under a training arrangement with an RTO. 
• the employee is engaged to undertake essential work during a peak demand period. 
• the employee is engaged to undertake work during emergency circumstances or a temporary absence of another employee. 
• in the year the contract is entered into, the employee’s earnings under the contract exceed the high-income threshold for that year. 
• the contract is for a position funded in whole or in part by government funding, the funding is payable for more than two years, and there are no reasonable prospects that the funding will be renewed. 

 

Other changes 

 

Other changes in the legislation which may impact ECEC services include: 

 

• Anti-discrimination: “breastfeeding”, “gender identity” and “intersex status” definitions are now protected attributes under the Fair Work Act. 
• Expert Panels for pay equity, the Care and Community Sector are to be introduced. 
• The Act has been strengthened to prohibit sexual harassment in the workplace. 
• Enterprise agreement and bargaining: changes to the approval process and better-off overall test (BOOT), multi-enterprise bargaining, terminating enterprise agreements and the sunsetting of “zombie” agreements. 

 

For further information please see here.