Regulatory issues impacting your workforce

two young professionals looking at the computer screen

As part of our commitment to supporting our clients navigate a constantly evolving regulatory environment, the below summary of recent or upcoming employment legislative changes will help you stay on top of employment issues impacting your workforce.

This update is for general information purposes only and is not the provision of legal advice and should not be relied on as specific advice. Please consult a legal practitioner for legal advice on how these changes may affect your business.

Respect@Work

The Respect@Work Act which amends the Sex Discrimination Act 1984 has commenced and introduces new obligations on employers and expands the powers of the Australian Human Rights Commission (AHRC). Significantly, these changes introduce:

A new positive duty on employers and PCBUs ("Persons Controlling a Business or Undertaking") to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based discrimination and harassment, hostile workplace environments and victimisation. The new positive duty does not limit or otherwise affect a duty that an employer or PCBU has under work health and safety legislation.
An express prohibition against subjecting another person to a workplace environment that is hostile on the ground of sex.
A lower threshold for sex-based harassment, by requiring the conduct to be 'demeaning' rather than 'seriously demeaning'.

The commencement of the Respect@Work Act represents a significant shift for organisations to proactively prevent sexual harassment in the workplace. Amongst other things, it introduces a new positive duty on employers to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based discrimination and harassment, hostile workplace environments and victimisation.

The AHRC has recently launched a new Respect@Work website with various resources to assist organisations to comply with the new positive duty and other obligations. The AHRC will also have the power to monitor and assess compliance with the new positive duty and to inquire into systemic unlawful discrimination as part of changes introduced by the Respect@Work Act. These powers come into force on 12 December 2023.

Prohibition on sexual harassment in connection with work

The government has also amended the Fair Work Act and introduced a new prohibition on sexual harassment. Due to this change it is unlawful for a person to sexually harass another person in connection with a work or business setting (which includes as an employee, contractor, subcontractor, labour hire employee, apprentice, trainee, a student gaining work experience, or a volunteer), and includes prospective workers. New vicarious liability provisions mean a worker can seek a remedy from their organisation, in addition to the alleged offender, where the organisation did not take all reasonable steps to prevent the sexual harassment.

Changes to public holiday rostering

A recent Federal Court decision handed down means that if an employer wants an employee to work on a public holiday, the employee must agree to a request before being rostered on. The employee can refuse this request if their refusal is reasonable. Employers relying upon rostering for public holidays will need to ensure communications are issued to employees confirming that any roster to work is a request to work that can be refused by the employees. The communication should also indicate that the roster is, in effect, in draft until any responses to the request have been received.

More information can be found on the Fairwork website.

International student & Working holiday visas

The Federal Government announced the following updates to International Student visa holders and Working Holiday Maker visa holders.

Student visa holders:

From 1st July 2023 the allowable work hours cap will increase from 40 hours per fortnight to 48 hours per fortnight. The following conditions will remain as per normal;
- maintain their course enrolment
- ensure satisfactory course attendance, and
- ensure satisfactory course progress.
Student visa holders who cancel their enrolment and stop attending classes, or fail to meet satisfactory course progress, may be in breach of their visa conditions.

You can read more about these changes here.

Working Holiday Maker visa holders:

From 1 July 2023 onwards, WHMs may work for any employer for up to an additional 6 months even if they worked for that same employer before 1 July 2023. After that 6 month period the one employer work limitation will apply as per the restriction prior to the pandemic.

You can read more information about these changes here.

Secure Jobs and Better Pay Legislation Summary

A number of changes have been made to the Fair Work Act with the passing of the Secure Jobs and Better Pay Legislation. Below is a list of the main changes.

This list is a guide, not a detailed list of all of the changes, nor is it the provision of legal advice. Please consult a legal practitioner for legal advice on how these changes may affect your business.

Prohibiting pay secrecy

In line with the primary objective of gender equity, there is now a new positive right for employees (regardless of any contractual term) to disclose (or not disclose) information concerning their own remuneration structure to others. It is hoped that openness and transparency in the workplace will eliminate pay bias between genders or other groups. All Hays casual contracts have been updated to reflect this change.

Relevant terms and conditions in relation to an employee’s remuneration include:

the number of hours an employee is contracted to work and
any information concerning bonus payments.

Since these new rights constitute workplace rights, employers must not engage in adverse action against an employee for choosing to disclose or not disclose their remuneration or for asking another employee about their own remuneration. Adverse action can include anything from demotion, disciplinary action or termination.

Anti-discrimination and special measures

A further three protected attributes will be inserted into the anti-discrimination provision in the Fair Work Act to bring the Fair Work Act into alignment with other Commonwealth anti-discrimination legislation. These attributes are:|

breastfeeding,
gender identity and
intersex status.

Flexible working arrangements

The circumstances on which an employee is eligible to make a flexible working request have been extended to:

Employees experiencing family or domestic violence or who are required to provide care or support to a member of their family or household who is experiencing family or domestic violence, are now eligible to make a flexible working request under the Fair Work Act.
Pregnant employees.

The Fair Work Act was also amended to provide a more detailed procedure, which is consistent with the procedure set out in modern awards, for how employers must respond to requests for flexible working arrangements.

Fixed-term/max term contract restrictions

From 6 December 2023 there will be strict limits on the use of fixed-term and maximum-term contracts. This change does not apply to employees engaged on a casual basis or to independent contractors. In essence, employers are prohibited from entering into a fixed-term or max-term contract which:

is of more than two years' duration (including any extension/renewal period); or
contains more than one extension/renewal option.

In the event a fixed-term or max-term contract exceeds the limitation period, it will be unenforceable, and the employee will effectively be considered a full-time permanent employee.

There are extensive anti-avoidance provisions to prevent employers from trying to circumvent these provisions (eg prohibiting employers from changing the timing of contracts, or ending their employment or delaying reengaging the employee).

There are a number of exceptions to this which include (to name a few): the employee has specialised skills that the employer does not have, but needs, to complete a specific task; or the employer needs to replace a permanent employee who is absent for personal or other reasons, for example parental leave, sabbatical, or long service leave.

Employers will also be required to issue employees engaged on a fixed-term or maximum-term contract with a Fixed Term Contract Information Statement which is currently being drafted by the government, in addition to the Fair Work Information Statement.

Enterprise agreements

A number of amendments have been made to the enterprise agreement process, including the expansion of access to multi-enterprise agreements and multi-employer bargaining.

Due to the number of amendments, we will not provide an update on all of them in this guide and recommend you review the Fair Work Ombudsman website or obtain your own legal advice regarding how these changes may affect your business.

Prohibited non-compliant job advertisements

Penalties will now be imposed on employers who advertise employment opportunities at a rate of pay that would contravene the Act or a fair work instrument (for example, an award or enterprise agreement). Special provisions apply for piecework, which is work that is paid at a fixed rate based on the amount done rather than the time it takes to do the job. The Act requires advertisements of piecework to include any periodic rate of pay which the pieceworker would be entitled.

New shutdown rules for Awards

The Fair Work Commission has standardised shutdown provisions for directing employees to take unpaid leave during any business shutdown periods, including the Christmas/New Year break, in over 70 Awards, with these changes commencing on 1 May 2023. The Decision will amend 78 Awards. Some of the key Awards on this list include:

Banking, Finance and Insurance Award 2020
Building and Construction General On-site Award 2020
Clerks – Private Sector Award 2020
General Retail Industry Award 2020
Hospitality Industry (General) Award 2020
Manufacturing and Associated Industries and Occupations Award 2020
Miscellaneous Award 2020
Professional Employees Award 2020.

The main impact of these changes is that employers will no longer be able to direct employees to take unpaid leave during a shutdown period if they do not have sufficient annual leave accrued to account for the full period. Instead, the new requirements mean that:

an employer can direct an employee to take paid annual leave during a shutdown period (where the employee has sufficient annual leave)
if the employee does not have enough annual leave, the employee and the employer can agree for the employee to take unpaid leave for the shutdown period (i.e. an agreement as opposed to a direction)
alternatively, and if permitted by the terms of the Award, an employee can take annual leave in advance during the shutdown period by making an agreement under the Award.

The model clause also introduces a standardised 28 days’ written notice to employees of a temporary shutdown period. These changes will commence on 1 May 2023.

If an employee’s employment contract includes a clause that provides for unpaid annual leave in the event of a shutdown period, you should obtain legal advice as to its interaction with these new changes.

The above changes will impact how employers manage their employee’s annual leave during business shutdowns, so reviewing any existing arrangements and contracts is important to ensure compliance with the new provisions.

More information and a full list of the affected awards can be found on the Fair Work Ombudsman website.