Fair Work Act Changes

Fair Work Act Changes

Is your practice up to date with the latest changes to the Fair Work Act? AMA (NSW)’s Felicity Buckley and Lisa Bennell detail what employers need to know to ensure they don’t fall afoul the new rules.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 made changes to the Fair Work Act 2009 (the Act) last year. This article examines the changes and what they mean for medical practices.

Sexual harassment in the workplace

The Act now expressly defines and prohibits workplace sexual harassment, separating it from other workplace issues such as bullying.

The new provisions make it expressly unlawful for a person to sexually harass another person who is:

• a worker in a business (including contractors, volunteers, trainees and work experience students); or
• seeking to become a worker in a business; or
• a person conducting a business.

These changes came into effect on 6 March 2023.

The means by which the Fair Work Commission (FWC) may address and deal with claims of sexual harassment in the workplace have increased.

Workers will now have the choice to pursue disputes through the FWC, the Australian Human Rights Commission or via state and territory anti-discrimination processes. The new FWC dispute resolution process permits FWC to deal with disputes through conciliation or mediation. Where a dispute cannot be resolved in this way, and parties agree, the FWC can determine the dispute and make orders including orders for compensation.

What does this mean for employers?

The changes extend the liability of an employer or principal of a business, as they may be held to be vicariously liable for their employees or agents conduct that may amount to sexual harassment. The employer must be able to demonstrate that they took reasonable steps to prevent the conduct to avoid liability.

These changes have been implemented to ensure workplaces adopt a preventative approach to sexual harassment. Employers should ensure:

• they introduce or update workplace sexual harassment policies,
• provide training and education to everyone in the medical practice, and
• provide a supportive environment for all workers.

Prohibition on pay secrecy clauses

The amendments to the Act prohibit pay secrecy clauses in employment contracts, improve transparency, and give employees a positive right to disclose, or not disclose, their remuneration to others.

Pay secrecy clauses included in new employment contracts from 7 December 2022 will have no effect, and from 7 June 2023 will attract penalties.

Pay secrecy clauses in employment contracts in place prior to 7 December 2022 will continue to have effect, until those contracts are varied, in which case such clauses should no longer be included and will be of no effect.

What does this mean for employers?

Employees are free to choose whether to discuss and disclose their remuneration arrangements to others and they are protected from adverse action if they exercise their right to disclose or not disclose their remuneration.

Employers are not required or expected to hand over or disclose details of employee remuneration.

Employment contracts issued after 7 December 2022 should not include pay secrecy clauses, and we recommend you review your current employment contracts.

Current agreements and contracts of employment which do not have pay secrecy terms are not affected.

It is important that employees are not treated differently because they have disclosed (or have not disclosed) their remuneration details to others.

Family and domestic violence leave

In 2018, five days unpaid family and domestic violence leave was introduced into the National Employment Standards.

The amendments to the Act provide eligible employees access to 10 days paid family and domestic violence leave per year. From 1 February 2023, paid leave is available for those working in a business with 15 or more employees, and for small businesses with 15 or less employees, from 1 August 2023.

Employees may continue to access up to five days unpaid family and domestic violence leave until the new paid entitlement becomes available to them.

It may be taken by employees experiencing family and domestic violence to deal with the impact of family and domestic violence, where it is not practical for them to do so outside their work hours.

Paid leave is available to full time, part time and casual employees. The 10 days become available upon commencement of employment and the days do not accumulate from year to year. The paid leave entitlements renew on the employee’s work anniversary.

What does this mean for employers?

Leave can be taken as single or multiple days. An employer and employee can also agree for an employee to take less than one day at a time.

Employees are required to notify their employer as soon as possible if they need to take the leave. An employer can ask for evidence, but the information can only be used to satisfy themselves that the family and domestic violence leave needs to be taken. The evidence provided must be stored in such a manner to ensure it remains confidential.

Payment is to be at the employee’s full pay rate for the hours they would have worked but for the fact they were on leave. A payslip should not record that the leave taken was family and domestic violence leave.

Right to request flexible working arrangements

Changes have been made to the Act to strengthen the right to request flexible working arrangements to assist eligible employees to negotiate flexible arrangements that suit both the employee and employer. Changes come into effect on 6 June 2023.

The amendments to the Act:

• expands the circumstances in which an employee may request flexible work arrangements to include employees who are pregnant as well as situations where an employee, or a member of their immediate family or household, experiences family and domestic violence,
• provides a fair and transparent process for responding to flexible working arrangement requests, and
• allows the FWC to deal with a dispute about a request, including attempting to resolve the dispute by conciliation, mediation or if necessary mandatory arbitration, in circumstances where employers and employees cannot agree on a solution at the workplace level.

What does this mean for employers?

Employers have an obligation to discuss an employee’s request for a flexible working arrangement when the eligible employee makes the request.

In circumstances where the employer refuses the request, the employer needs to provide written reasons for the refusal.

The employer also needs to consider and inform the employee in writing, if there are other changes they are willing to make to accommodate an employee’s circumstances.

The threshold of “reasonable business grounds” on which an employer can refuse have not changed.

Employees will have increased access to dispute resolution through the FWC if they cannot resolve disputes about flexible working arrangements at the workplace level.

As always, the AMA (NSW) Workplace Relations team are here to help you if you have any further questions about these changes. You can contact our team at workplace@amansw.com.au or on +61 2 9439 8822.

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