Recent changes in the IR/Workplace Relations space - What you need to know
Happy New Year!
As we step into January, it is the perfect opportunity to start afresh, ensuring that your business is compliant and set up for success in 2024.
As you may be aware, 2022 and 2023 brought into effect some significant changes within the industrial and workplace relations space. As an Employer and/or business owner, it is important to remain up to date regarding these changes, and any changes which may come into effect for your business as a result.
What do I need to know about?
Flexible working reforms
When an employee makes a request for a FWA, employers will have a greater requirement to discuss the request with the employee and come to a genuine agreement, including the consideration of alternative agreements.
It is important to note that an Employer can only refuse a request on reasonable business grounds. If their FWA request is refused, the employee can now apply to the Fair Work Commission (FWC) to resolve the dispute. This is expected to significantly increase the likelihood of employers and employees agreeing to flexible working arrangements.
Prohibiting pay secrecy
Employers cannot issue employment contracts which include pay secrecy clauses. Any pay secrecy clause included in a new contract will have no effect, and is a breach of the Fair Work Act 2009, which can result in civil penalties. Employees have the right to share and discuss their remuneration information with others, and an employer cannot take action against an employee for doing so. However, if an employee has a pay secrecy clause in an existing contract, it will be preserved until the contract is varied.
Anti-discrimination protections
Anti-discrimination protections have been extended to include breastfeeding, gender identity, intersex status and employees experiencing family domestic violence.
Paid leave for employees experiencing family domestic violence
From 1 August 2023, employees of a small business employer (ie. 15 employees or less) are able to access paid family and domestic violence leave.
Full-time, part-time and casual employees can take up to 10 days of paid family and domestic violence leave in a 12-month period (it isn't pro-rated for part-time or casual employees).
All 10 days are available upfront - an employee doesn't accrue it, and the leave doesn't accumulate from year to year if it's not used.
Employers must not include certain information on an employee's pay slip about taking paid family and domestic violence leave.
This leave entitlement replaces the previous 5 days of unpaid family and domestic violence leave under the National Employment Standards (NES).
Sexual harassment and Respect @ Work
Sexual harassment in the workplace is prohibited. As an Employer, you can be vicariously liable for sexual harassment that occurred in connection to the workplace, unless you (the Employer) can prove that you took all reasonable steps to prevent such conduct occurring. The prohibition of sexual harassment extends to workers, including contractors, subcontractors, work experience students, and volunteers.
The "Respect @ Work" reforms in December 2023 were a crucial step towards addressing workplace harassment and fostering safer work environments. These reforms involved strengthening legal protections against workplace harassment, discrimination, and victimization, emphasizing a culture of respect and safety in all workplaces.
These reforms have resulted in a significant change in focus of the Sex Discrimination Act (1984) (Cth) (SDA) from a complaints-based system to a positive duty to prevent sexual harassment, sex-based harassment and discrimination, hostile work environments and victimisation.
Fixed term contracts
Employers must now adhere to limitations on fixed term contracts, including:
A maximum term of two years;
The ability to renew or extend the fixed term only once; and/or
Ensuring that consecutive fixed term contracts do not extend beyond a 2 year period.
There are some exceptions to the above limitations, including but not limited to fixed-term contracts for parental leave cover, apprenticeships/traineeships, seasonal work and/or government-funded positions.
Superannuation
Reforms pertaining to superannuation were introduced to enhance the superannuation guarantee, ensuring that employees receive fair and adequate retirement savings. Changes aimed to bolster the overall superannuation system and provide better financial security for workers in their post-employment years.
From 1 January 2024, the National Employment Standards (NES) includes a right to superannuation contributions. This means that unpaid or underpaid superannuation can be enforced under the Fair Work Act.
Unpaid parental leave
From 1 July 2023, the Fair Work Act includes greater flexibility for employees taking unpaid parental leave, including the following key changes:
Employees taking unpaid parental leave can take up to 100 days of their 12 month leave entitlement flexibly during the 24 month period after the birth or placement of their child. This is an increase from the previous 30 day entitlement.
Pregnant employees are able to access their flexible unpaid parental leave up to 6 weeks before the expected date of birth of their child.
Employees are no longer prevented from taking more than 8 weeks of unpaid parental leave at the same time as their spouse or de facto partner (known as concurrent leave).
Both parents can take up to 12 months unpaid parental leave at any time within 24 months of their child’s birth or placement. They can also both apply for an extension of up to 12 months beyond the initial 12 month leave amount.
Wage theft
The latest proposed amendments to the Fair Work Act 2009(Cth) may result in important changes in relation to wage theft. If the reforms are passed, if a company intentionally fails to pay employees their minimum entitlements and/or fails to ‘create and maintain’ a corporate culture that requires compliance, it will make a company criminally liable. The consequences for non-compliance will be significant, including fines of up to $7.8 m or three times the underpayment, and 10 years imprisonment for individuals.
NOTE: These changes are proposed, and have not yet taken effect.
How can we help?
In light of the changes outlined above, to ensure that your business is compliant, it is recommended that you:
Review your current workplace policies and procedures;
Review your current employment contracts;
Consider undergoing a “HR health check” for your business, to ensure adherence to legislative requirements.
If you have any questions or would like assistance with the above, please feel free to contact us for a free, no-obligation discussion.
If any of your professional contacts require HR advice or support in 2024, I would greatly appreciate your referral.