Immediate actions for employers: Fair Work Act changes
A suite of sweeping changes to the Fair Work Act 2009 (Cth) (Fair Work Act) have now been passed into law through the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which received Royal Assent on 6 December 2022.
Most changes will come into effect in three to seven months (and we will provide a more detailed update on those in due course) but importantly, a number of changes came into effect on 7 December 2022 which affect employers immediately.
We set out below actions that employers need to take now!
There is now a prohibition on pay secrecy in employment contracts.
Employees have a right to disclose their remuneration, or ask other employees about their remuneration, or any terms or conditions that are reasonably necessary to determine their remuneration, for example their hours of work. These are workplace rights, meaning that employers cannot act adversely towards employees who exercise these rights.
Pay secrecy provisions of existing employment contracts will have no effect and there is a prohibition on including such provisions in new employment contracts.
The inclusion of a pay secrecy clause in a new employment contract or contract variation could expose the employer to a civil penalty of up to $66,600 per breach.
Immediate action required:
- Ensure that any employment contracts issued on or after 7 December 2022 do not contain provisions requiring employees to keep their remuneration secret (or any terms that are reasonably necessary to determine their remuneration). This may be addressed in a specific pay secrecy clause and within general confidentiality provisions.
- Ensure that any variations of existing employment contracts remove any pay secrecy obligations.
It is now a civil penalty offence for employers to advertise employment opportunities at a rate of pay that would contravene the Fair Work Act or other applicable industrial instrument, such as a modern award or enterprise agreement.
Immediate action required:
- Ensure the pay rates in job adverts comply with the Fair Work Act and applicable industrial instruments.
- Adverts for piecework must include the periodic rate of pay.
Employers need to be aware of the immediate changes to the Fair Work Act and take steps to avoid significant penalties for non-compliance.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.