2022 has been a busy, challenging year for Australian businesses, with the post-pandemic economy opening up with a rush then facing pressures of a tight labour market, skills squeezes, rising inflation and employee pay expectations, and supply chain issues (not to mention ongoing COVID-19 infections).
We’ve also had a change in federal parliament and the new Labor government wasted no time in introducing a raft of reforms to workplace and industrial relations.
So as we look ahead to 2023, the new year provides a golden opportunity to review all your HR and people management practices and employment documentation to ensure they are fit for purpose and comply with recent and upcoming legislative changes. This will put you and your team on solid footing for the coming year.
So let’s have a look at all the important legal obligations you should have sorted in 2023, because there are quite a few.
Secure Jobs, Better Pay
This is a big one! The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amends the Fair Work Act, introducing a range of new workplace laws and changing a number of existing regulations. These changes will be phased in from 7 December 2022 to 6 December 2023.
Changes from 7 December 2022
Pay secrecy
Employees now have a right to share (or not share) information about their pay or the terms and conditions that would be needed to work out their pay, e.g. their hours of work, and to ask other workers about their pay.
Existing employment contracts that are inconsistent with these new workplace rights are no longer valid and employers who take adverse action against employees (e.g. disciplinary action or termination of employment) because of these rights could face claims from employees.
From 7 June 2023, employers cannot include any pay secrecy terms in a new employment contract or other written agreement. Non-compliance may result in civil penalties.
Termination of enterprise agreements
The process for terminating an enterprise agreement has changed, with a more-onerous set of criteria that must be satisfied before the Fair Work Commission (FWC) will approve the termination of any enterprise agreement that has passed its nominal expiry date.
The FWC also has new powers to correct errors in enterprise agreements (including how the errors are corrected) on its own initiative or on application by an employer, employee or union covered by the agreement.
Details about other changes to enterprise agreements and bargaining will come in the new year.
Sunsetting of ‘zombie agreements’
Operating enterprise agreements that were made before the beginning of the Fair Work Act (commonly known as ‘zombie agreements’) will automatically terminate on 7 December 2023 - 12 months after the changes came in.
Parties to an agreement can apply to the FWC to extend the sunset date for the agreement by up to 4 years at a time, if the application meets certain conditions.
Find out more about 'zombie agreements' at fairwork.gov.au.
Anti-discrimination
Breastfeeding, gender identity, and intersex status are new protected attributes at work (on top of existing protected attributes such as race, sex, and age), prohibiting employers from taking adverse action against employees because of these attributes.
The Fair Work Ombudsman also has the power to start court proceedings for any alleged breaches.
Changes from 7 January 2023
Job advertisements
All new or existing job ads cannot include pay rates or workplace conditions that undercut employees’ minimum entitlements under the Fair Work Act (or other industrial instrument, e.g. an award or enterprise agreement).
Advertisements for pieceworker positions where the employee would be entitled to a periodic rate of pay also need to state that a periodic pay rate will apply and what the pay rate is.
Changes from 6 March 2023
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 FWC will have expanded powers to deal with disputes about sexual harassment, including the power to arbitrate disputes by consent.
Changes from 6 June 2023
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 will also be able to hear and make orders if the parties can’t resolve a dispute about a flexible working request.
Learn more about the new provisions and how to handle flexible work requests.
Multi-employer bargaining
From 6 June 2023 (or earlier if fixed by proclamation), the existing multi-enterprise bargaining regime will be expanded and will give employees and trade unions greater powers to oblige employers to bargain for agreements that cover multiple employers, including competitors.
The change will see the current ‘low paid bargaining’ stream replaced with ‘supported bargaining’, which is intended to assist employers and employees in low-paid industries (e.g. childcare, disability care and aged care), where single-enterprise bargaining has fallen away in recent years.
It also includes the capacity for employers to be compelled to engage in multi-employer bargaining where the majority of employees are supportive and where there is a ‘clearly identifiable common interest’, i.e geographic location or the nature of their enterprises.
However, the building and construction industry is not included in these reforms.
Unpaid parental leave changes
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.
Changes from 1 July 2023
Small claims process
The cap on the amount that can be awarded to a worker seeking to recover unpaid work entitlements through small claims court proceedings will increase from $20,000 to $100,000.
The courts will also be able to award filing fees as costs to successful small claims applicants.
Changes from December 2023
Fixed-term contracts
Employers will no longer be able to employ a person on a fixed-term contract that is for 2 or more years (including extensions) or extend a fixed-term contract more than once.
Employers won't be able to avoid the new restrictions from applying by taking action such as delaying re-engaging an employee or engaging someone else instead to do the same job. Employers will also need to issue employees on fixed-term contracts with a ‘Fixed Term Contract Information Statement’, which is similar to the Fair Work Information Statement.
Other legislative changes to be aware of
Family and domestic violence leave
Full-time, part-time and casual employees will all have access to 10 days of paid family and domestic violence leave. The 10-day entitlement will be available to employees on commencement and at each 12-month service anniversary date thereafter. It won’t accumulate from year-to-year if not used. It’s not pro-rata for part-time or casual employees.
This change is effective from 1 February 2023 for all employees of businesses with 15 or more employees (on 1 February 2023) and from 1 August 2023 for employees of small business employers (less than 15 employees).
Read our article on paid family and domestic violence leave.
Superannuation
The superannuation guarantee, or the percentage of employees’ remuneration that employers need to pay, is increasing again in July 2023. The superannuation guarantee rate of 10.5% will increase to 11% from 1 July 2023. This is a continuation of the scheduled yearly increase until 2025 to reach the eventual rate of 12%.
Increased award rates
The national minimum wage increased by 5.2% in 2022, to $21.28 per hour (minimum gross pay), and minimum modern award rates increased by:
- 4.6% for rates currently above $869.60 per week, and
- $40 per week or $1.05 per ordinary hour for rates currently below $869.60 per week.
The Fair Work Commission will review minimum wages again in June 2023 and issue its national minimum wage order to take effect on 1 July 2023.
Ensuring your employment systems are in good shape
Coming back from the Christmas break, you’ll probably be full of energy and brimming with good ideas for improving the business and helping your people succeed in 2023.
It’s also an opportune time to review all of your employment documents and practices, from your company policies, job descriptions and employment contracts, through to performance reviews and pay rates. It’s about keeping your house in order, making sure you’re on the right side of workplace laws, and having the right systems and people in place to make your business and its culture thrive.
If you’re still using paper and filing cabinets, have allowed your documentation to get out of date, or simply have lots of gaps in your processes, now is the time to sort it out.
Read more about the importance of a complete HR health check.
