As the year comes to a close, and businesses start to get ready for the end of the year shut down period, it is an opportune time for businesses to reflect on the changes which have been made in the employment law space during 2023 and the commensurate changes these have necessitated in business practice and policy. However, businesses should ensure that they also do not lose track of the changes which will be implemented before the holiday shut down period. As such, this article serves both as a reminder of the amendments which have come into effect this year as well as those which will come into effect in the upcoming weeks.
Wrap up of 2023
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 Amendments
In 2023, we saw one of the biggest shakeups to the employment law space as a result of the passing of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (“Amending Act”). The Amending Act introduced new provisions which significantly altered and amended various areas of employment law. Some of the major changes include, but are not limited to:
- Flexible Work Arrangements – an expansion of the right to request a flexible work arrangement;
- Enterprise Agreements – amendments to enterprise agreement framework which make it easier for employees to bargain and more difficult for employers to resist employees’ attempt to bargain;
- Pay Secrecy – prohibition of pay secrecy clauses and the introduction of civil penalties for employers who include pay secrecy clauses in their agreements, and the introduction of a workplace right for employees to discuss remuneration and related employment conditions;
- Gender Pay Gap – changes in reporting requirements for larger businesses with 100 employees or more; and
- Workplace Sexual Harassment and Discrimination – together with the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (“Respect at Work Act”), the Amending Act introduced a positive duty to prevent sexual harassment in connection with work and expanded the existing provisions and powers of the Fair Work Commission and the Fair Work Ombudsman. We also saw the introduction of Guidelines regarding the manner in which business can comply with this new positive duty.
For more detailed information about the Amending Act, and the amendments it introduced, please see our articles titled:
- ‘What does the Secure Jobs, Better Pay legislation mean for employers’
- ‘Get your house in order: AHRC releases guidelines for employer “positive duty” to eliminate sexual harassment’; and
- ‘Workplace Gender Equality – what are the current requirements and why is it important’.
Shutdown Provisions
Earlier this year, the Fair Work Commission also made changes to annual leave provisions in modern awards, to clarify when and how employers could direct employees to take leave during a shutdown period (“Shutdown Provisions”). As of 1 May 2023, the new Shutdown Provisions implement new rules regarding taking annual leave during a company’s shutdown periods. The Shutdown Provisions are applicable to employees which are covered under 78 modern awards.
Under the new Shutdown Provisions, employers can require employees to take paid leave during a temporary shutdown period; however, the employer must:
- provide impacted employees with at least 28 day’s written notice of the temporary shutdown period (notice periods can be reduced if an agreed reduces period is agreed between the employer and the majority of the impacted employees); and
- ensure the requirement to take annual leave is reasonable.
Further, under the Shutdown Provisions, if an employee does not have enough paid annual leave entitlements to cover them for the whole shutdown period, their employer cannot direct the employee to take unpaid leave and must discuss other options with the employee in respect of those days. This may include the employer and the employee making an agreement in which the employee:
- uses accrued time off;
- takes annual leave in advance (i.e., go into negative leave); or
- agrees to take leave without pay.
As such, we advise employers to review their employees’ leave balances prior to the shutdown period and encourage them to commence discussion with affected employees and ensure the requisite notice is provided to ensure that they are compliant.
Key Reminders for December 2023
Further amendments which come into effect in December 2023
The Amending Act introduces two amendments that come into effect on 7 December 2023, namely:
- Zombie Agreements – all collective agreement-based transitional instruments, or zombie agreements, which were made under the Workplace Relations Act 1996 (Cth) will automatically be terminated on 7 December 2023. Employers were required to provide notice to affected employees earlier in the year; and
- Fixed Term Contracts – As of 7 December 2023, new limitations will be implemented to the fixed-term contractual regime which will prohibit the use of fixed-term contracts which span for a period of greater than 2 years, including any potential extensions or renewals of the contracts.
Holiday parties
In light of the new sexual harassment provisions which were implemented by the Amending Act earlier this year, as well as the Respect at Work Act, employers now have a positive duty to prevent sexual harassment in relation to work. As a result, employers can be held liable for sexual harassment conducted by one of their employees, or any of their agents in connection with the work, if they cannot show that they have taken all steps necessary to prevent sexual harassment from occurring.
In the last few weeks, Federal Court Justice Anna Katzmann, awarded a claimant, Ms Fiona Taylor, record sexual harassment damages amounting to $268,233.64 ($140,000 being general damages). The Court held that Mr Simon Grew, the owner of her employer Grew & Co, sexually harassed Ms Taylor by engaging in conduct including slapping her bottom and on multiple occasions asking her to commence an intimate relationship with him. This decision is extremely important in that it sets the bar for the record general damages awarded to a claimant, namely $140,0000, for sexual harassment under the Sex Discrimination Act 1984.
Given the new positive duty imposed on employers, and the recent court ruling, it is essential that employers ensure they are taking extra steps prior to their holiday celebrations and the silly season to prevent sexual harassment and avoid any claims. For more information regarding what steps employers can take to prevent sexual harassment, see our article regarding managing risks at holiday parties.
Key Takeaways
Given the number of amendments which have been implemented this year, and the amendments which have yet to take effect, we encourage employers to ensure they are compliant.
If you, or your business, would like to discuss any of the above-mentioned amendments, or if it requires assistance to ensure it is compliant, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.