Key Updates in Fair Work Legislation Affecting SMEs 

The past year has seen significant transformations with enacting the Fair Work Legislation Amendment in the ever-evolving employment law landscape. As your trusted advisor, we’re dedicated to informing you about the changes that have been introduced to enhance job security, increase flexibility, and broaden access to enterprise bargaining agreements. 

1. Positive Duty on Sexual Harassment (Effective since November 2022):

Last November, the Respect@Work Bill introduced a ‘positive duty’ for employers to actively eliminate sexual harassment within the workplace. This places a heightened emphasis on creating safe and respectful work environments. 

2. Extended Time Limit for Complaints (Effective since November 2022):

Employees now have an extended timeframe of 24 months, up from six, to file sexual harassment complaints. This extension aims to give individuals more time to address and report incidents. 

3. New Protected Attributes (Effective since December 2022):

Discrimination laws have expanded to include additional protected attributes such as breastfeeding, gender identity, and intersex status. Employers need to familiarise themselves with these changes to ensure compliance. 

4. Abolition of Pay Secrecy Clauses (Effective since December 2022):

Employment contracts must be reviewed and updated to eliminate any pay secrecy clauses, which are now deemed unlawful. Failure to do so may result in civil penalties. 

5. FWC’s Power to Issue Bargaining Orders (Effective since December 2022):

The Fair Work Commission (FWC) has gained the authority to issue bargaining orders if a party is found to be negotiating in bad faith. This empowers the FWC to intervene when necessary to ensure fair and genuine negotiations. 

6. Paid Family and Domestic Violence Leave (Effective since 1 February 2023):

Businesses are now obligated to provide 10 days of paid family and domestic violence leave, offering crucial support to employees facing challenging circumstances. 

7. Privacy Protection for Domestic Violence Leave (Effective since 1 February 2023):

To safeguard employees’ privacy, employers are prohibited from recording ‘domestic violence leave’ ‘special leave’ or ‘leave’ on payslips. Any time taken as domestic violence leave must be reported as ordinary earnings on payslips. This measure ensures confidentiality for those taking advantage of this critical leave provision. 

8. Compulsory Training on Sexual Harassment Orders (Effective since March 2023):

In March 2023, the FWC gained the authority to issue compensatory orders to address sexual harassment complaints. Employers are encouraged to train employees on ‘stop sexual harassment’ orders and update existing policies accordingly. 

9. Changes to Flexible Work Arrangements (Effective as of June 2023):

Businesses should anticipate upcoming changes in policies surrounding flexible work arrangements. Denying flexible work requests will soon come with increased legal scrutiny, necessitating careful consideration by employers. Fairwork has more information on how to respond to these requests here.  

10. Fair Work Commission Involvement (Effective as of June 2023):

Ignoring a flexible work request for 21 days may prompt intervention from the Fair Work Commission, underlining the importance of timely and fair consideration. 

11. Emergence of Cooperative Workplaces (Effective as of June 2023):

June 2023 marks the introduction of cooperative workplaces, allowing groups of employers to engage in multi-enterprise bargaining agreements. 

12. Better Off Overall Test (BOOT) Flexibility (Effective as of June 2023):

The FWC gains greater flexibility in considering the views of bargaining parties regarding the Better Off Overall Test (BOOT). This change aims to streamline the negotiation process for all parties involved. 

13. Limitation on Fixed-Term Contracts (Effective as of December 2023):

Starting December 2023, employers are advised to refrain from using fixed-term contracts that exceed two years or extend beyond two consecutive contracts as new rules apply around fixed term contracts. 

A fixed term contract can’t be for longer than 2 years, including extensions and renewals. 

A fixed term contract can’t have an option to: 

• extend or renew the contract so that employment period (including the extension or renewal period) is longer than 2 years, or 
• extend or renew the contract more than once. 

An employer can’t employ someone on a new fixed term contract if: 

• the contract is for mainly the same work as a previous fixed term contract.
• there isn’t a substantial break in the employment relationship between the previous and new contracts, and 

From 6 December 2023, employers must give employees they’re engaging on a new fixed term contracts a Fixed Term Contract Information Statement (FTCIS). 

The FTCIS will be available to download from the FairWork website from 6 December 2023. 

14. Termination of ‘Zombie Agreements’ (Effective as of December 2023):

Pre-Fair Work Act enterprise agreements will be terminated, marking the end of ‘zombie agreements.’ A zombie agreement is an agreement made before the commencement of the Fair Work Act 2009 (FW Act) which continues to operate as it has not been terminated or replaced by another agreement. Employers can apply for extensions if their agreements are deemed beneficial to employees. 

Would like to learn more? Here are some additional resources. 

For additional support and detailed information, please refer to the Fair Work Ombudsman and Fair Work Commission’s resource pages, which contain fact sheets and helpful timelines, as well as the Department of Work Relation’s Secure Jobs, Better Pay resource hub. 

How can Morrows Help? 

As your trusted advisors, we aim to provide you with actionable insights that will contribute to the success and compliance of your business. If you have any questions or need advice on any workplace legal matters, your advisor can connect you to Morrows Legal Solutions.  Our employment lawyers will assist you in keeping up with these changes.

The advice in this article is general in nature and does not constitute legal advice.