Employment law: Ciao 2023… Here comes 2024

It’s been a busy year for workplace and industrial relations. We’ve had numerous changes to employment law under Anthony Albanese’s Labor government, and there are plenty more scheduled for 2024.

Given the shifting legislative terrain, it’s really important to make sure your people processes and employment documentation are up-to-date, compliant with all current regulations, and tailored to the needs of your organisation.

So let’s have a look at the important legal obligations you should have sorted in 2023 and upcoming regulatory changes you’ll need to have on your radar in the coming year.

What went down in 2023?

Secure Jobs, Better Pay

Many of the changes from the 2022 Secure Jobs, Better Pay bill came into effect throughout 2023. There were so many changes that it’s worth recapping the major ones here.

Pay secrecy

• It’s now illegal to include pay secrecy terms in employment contracts.

Sexual harassment

• Changes to the Fair Work Act mean sexual harassment in connection with work, (including in the workplace) is prohibited. The person or company will also now be liable for sexual harassment committed by an employee (or other person in connection with work), unless they can prove that they took all reasonable steps to prevent it.
• The Fair Work Commission (FWC) now has expanded powers to deal with disputes about sexual harassment, including the power to arbitrate disputes by consent.

Find out more about dealing with workplace sexual harassment.

Flexible work

• Employees, or a member of their immediate family or household, experiencing family and domestic violence, and employees who are pregnant will have the right to request flexible working arrangements.
• Employers have new obligations before they can refuse any flexible working request, including discussing the request with the person, making a genuine effort to find alternative arrangements, considering the consequences of refusal, and providing a detailed written response.
• The FWC has also started hearing and making orders where parties can’t resolve a dispute about a flexible working request.

Learn more about handling requests for flexible work arrangements.

Unpaid parental leave

• When an employee asks for an extension of unpaid parental leave, employers will now either be able to agree, discuss and agree with the employee to a different extension period, or refuse the request on reasonable business grounds only after genuinely trying to reach an agreement with the employee (and having considered the consequences of refusing the extension).
• The employer’s detailed response needs to be put in writing to the employee within 21 days of receiving the request.
• The FWC will also now have the power (including arbitration) to deal with disputes about extended unpaid parental leave requests.

Fixed-term contracts

• There is a maximum length of 2 years for all fixed-term contracts entered into on or after 6 December 2023, including any extensions or renewals.
• Fixed-term contracts can only be extended or renewed once, even if the total period is less than 2 years.
• Employers won't be able to get around the regulations by taking action such as pausing before re-engaging the same person on a new fixed-term contract or engaging another fixed-term employee to do the same job.
• Employers now need to provide fixed-term employees with a Fixed Term Contract Information Statement (FTCIS) before the employee starts work.

Find out more about changes to fixed term contracts.

Changes coming soon

Authorised employee deductions

From 30 December 2023, employees will be able to make a single written authorisation allowing their employer to deduct from their salary amounts that are recurring or that vary from time to time.

Currently, if a deduction amount changes the employee and employer have to create a new written authorisation.

The employee will be able to withdraw the authorisation in writing at any time.

Employees can continue to allow deductions for specific amounts only, if the deduction is principally for the employee’s benefit. This also has to be in writing.

Learn more about recovering costs from employees.

Changes to watch out for in 2024

Same job, same pay for labour hire workers

From next year, under amendments to the Fair Work Act, businesses that hire workers through labour hire firms to do the same work as their regular full-time employees will be required to give those workers the same pay and conditions.

Currently, labour hire workers don’t have to be paid the same as directly engaged employees doing the same work.

Redundancy obligations for downsizing businesses

New legislation will close a loophole that allows medium-sized businesses to avoid redundancy payment obligations for some employees when the company is downsizing.

Currently, an employee (commonly in payroll or finance) isn’t entitled to redundancy payments if they are one of the last remaining workers in a business with a headcount that has dropped to less than 15 due to insolvency.

The law change will mean employers can’t avoid paying redundancy in these cases.

Wage and super criminalisation

The recent Closing Loopholes Bill has introduced new measures to criminalise intentional wage and superannuation theft from 1 January 2025.

The changes will only come into effect once a small business code of conduct is established, to give small businesses some protection if they can prove nonpayment or underpayment was not deliberate.

Find out more about new wage theft laws.

Criminalisation of industrial manslaughter

From 1 July 2024, Industrial manslaughter will become a crime under Commonwealth work health and safety (WHS) laws.

Individuals convicted of industrial manslaughter will face a maximum penalty of 25 years in prison, and body corporates face fines of up to $18 million.

Other fines for breaching work health and safety duties in a reckless or criminally negligent way will increase.

Other supports for workers

From January 1, new workplace protections will mean employers cannot discriminate against people experiencing family and domestic violence.

First responders (ambulance officers, paramedics, firefighters, emergency services communications operators, Australian Border Force, and Australian Federal Police officers) will be able to gain workers' compensation for PTSD more easily, as insurers will be required to presume PTSD was caused by the job.

The Asbestos Safety and Eradication Agency will also begin to cover silica and silicosis in an attempt to better protect employees who use the materials.

TBC in 2024

Three major parts of the government's original Closing Loopholes Bill remain to be finalised next year, pending a Senate committee investigation.

These are the creation of minimum standards for “gig economy” workers, minimum standards for truck drivers, and changing the definition of casual employment so it will be easier for casual employees to convert to full-time employment.

Also, watch out for potential changes that would give employees greater rights to disconnect from work. 

The good news for SMEs is that extra funding will be provided for the Fair Work Ombudsman to assist small businesses with their new obligations.