Employment law: What’s changing in 2023

Introduction

2023 has seen some significant changes in employment law for Australians in a bid to create a more fair and safe working environment. These changes to the law look to make as much of an impact as the Fair Work Act of 2009, so it’s essential that you understand what these changes may mean for you. In this article, we will look at what’s changing in 2023 for employment law in Australia.

Changes to fixed-term contracts

One area of employment law that’s getting a refresh is the legislation surrounding fixed-term contracts. The new laws will restrict the usage of any fixed term or maximum term contracts for identical roles for periods exceeding two years or more unless an exception applies. This restriction will apply to various fixed-term contracts too.

All of the changes outlined will be enacted from 6th December 2024, although in some circumstances, existing contracts that have been extended will also be affected by the changes. As part of the changes to this legislation, employers will have to provide fixed-term contract information statements to all employees. The details of this statement remain unclear as they’ve yet to be announced by the Fair Work Ombudsman.

To make sure you adhere to the updated legislation, it’s important that you review any existing fixed-term contracts to make sure they align with the law. Businesses should also look into updating template contracts to omit things like extension clauses. Finally, be mindful of these new restrictions when onboarding new employees or setting up temporary workplace arrangements.

Pay secrecy changes

Another significant change to employment law looks to loosen any restrictions around divulging pay or working conditions. Any employment contracts that take effect from 7th December 2022 onwards and include clauses related to keeping pay rates or working conditions secret will no longer be enforceable.

This update ensures transparency around pay rates and working conditions, essentially protecting employees from any legal action taken against them for a potential contract breach. In essence, as of 7th June 2023, all contracts that include pay secrecy addendums, new or existing, will become unlawful. If an employer is found to still have these conditions in contracts, they’re susceptible to a civil penalty.

To stay compliant with these updates, make sure that you make sufficient changes to your template contracts to omit any clauses around pay secrecy. It is also worthwhile to consider how this impacts the workplace culture if any pay-based information is publicly available.

Changes to flexible working

As of 7th June 2023, employees will enjoy enhanced rights to work flexibly. All employers will be expected to adopt more stringent workplace processes when employees request flexible working entitlements. This will include the employer providing a written response to the request within 21 days. The changes also give employees greater powers to dispute issues with flexible working to the Fair Work Commission. In instances where the Fair Work Commission gets involved, this body will have the authority to resolve disputes by arbitration and conciliation. These enhanced powers will allow the Fair Work Commission to help with decision-making for flexible work arrangements while considering the impact on the business.

To stay compliant with these changes, it’s important that you update your workplace policies around flexible work conditions. It is also helpful to inform senior management of these changes to ensure they adhere to the new processes for flexible working requests.

Changes to sexual harassment issues

Updates to the Sex Discrimination Act of 1984 that took effect from 12th December 2022 mean that employers now have a positive duty to enact reasonable measures to help eliminate sexual harassment in the workplace. The main body enforcing this law will be the Australian Human Rights Commission, but any action from them won’t begin until December of 2023. This is quite a wide-reaching piece of legislation that also covers victimisation and sex discrimination, so it’s crucial that you understand these updates.

As of March 2023, the Fair Work Act will also be updated to try and eliminate sexual harassment in the workplace by placing the liability on employers if a worker deals with sexual harassment at work. This means that employers must take reasonable measures to prevent any form of sexual harassment at work. Any employee victim of sexual harassment can claim through the Fair Work Commission to seek compensation and push for penalties.

For employers, you’ll be expected to update your health and safety framework to incorporate assessments for sexual harassment risks and bring in control measures to mitigate them. So make sure that you review risk assessments so they include this and update policies and training to eliminate discrimination and sexual harassment in the workplace. It’s also essential to conduct investigations following any allegations of troubling behaviours or sexual harassment at work. These changes will impact social functions and Christmas parties, being common sources of sexual harassment claims.

Changes to enterprise bargaining

As of 7th June 2023, the Fair Work Commission will use a global assessment instead of a line-by-line assessment of entitlements when applying the better off overall test (BOOT). If the Fair Work Commission feels that the agreement doesn’t pass the test, it can make changes to address any issues. These changes will also give the Fair Work Commission more powers to overlook technical errors, provided employees won’t be disadvantaged by the errors. They will also factor in solely existing and foreseeable work patterns in this test instead of all possibilities, which should speed up the approvals process for employers.

If you have any Zombie agreements in place, it’s a good idea to seek advice to see what changes need to be made. For employers, these changes mean that you should look into your industrial relations strategy to make sure it works with these changes. Using the updated BOOT assessment to include foreseeable working patterns will also be necessary.

Conclusion

With these changes on the way, it’s crucial that you make sure your business and employees understand how the updates might impact things. Take the time to assess your existing practices and processes to ensure they incorporate these updates. That way, your business will enjoy all the benefits these new employment law changes can provide.

Want to discuss how these changes impact you directly? Call our friendly team and we can direct you to the information, or click here for a link to the Workforce Advisory Service article database

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