All employers ought to have in place robust Employment Contracts for all employees, whether they are casual, part time, full time, interns, seasonal or fixed term and provide the appropriate information statement/s.
For those employers that have a template/base contract or for those that intend to update their contracts, say for example after a promotion, role change or pay increase, then this information is relevant for you.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 among other things imposed:
- a prohibition on pay secrecy clauses;
- limits on the ability to use fixed-term contracts; and
- changes to flexible working arrangement request processing.
Pay secrecy
Sensibly, most standard form employment contracts contain confidentiality provisions including clauses that prohibit employees from disclosing their remuneration to other employees or anyone other than professional advisors such as lawyers, financial advisors and accountants.
Those clauses are no longer allowed and are not binding and employees now have a workplace right to share information about their remuneration or employment terms as they see fit.
Employers need to remove such clauses from new contracts entered into after 06 December 2022. Penalties can apply for breaches.
Fixed term contracts
From 06 December 2023, all employees on fixed-term contract (or consecutive shorter fixed term contracts) exceeding 2 years duration (or where there is more than one renewal even if less than 2 years duration) will be treated as continuing contracts, unless they fall within one of the limited exceptions in the Act or in a Modern Award.
Such employees will be entitled to unfair dismissal rules as part time and full time employees are. Penalties can apply for breaches.
Flexible work arrangements
The Fair Work Act (FW Act) contains a right for certain employees (eg, over 55s, those with disabilities, carers of young children or dependents or those involved with family violence) to request flexible working arrangements. Employers are obliged to consider those requests, but may refuse requests on reasonable business grounds.
From 06 June 2023, if an employer refuses a request or ignores it for greater than 21 days, then the fair Work Commission can intervene, direct arbitration and even make orders.
Employment contracts or workplace policies should be updated to include as much information as possible about the nature of the role, essential requirements etc, so employees understand what areas of flexibility may be feasible and what requests will reasonably be refused.
Workplace policies
In addition to having up to date and relevant Employment Contracts, employers also should have in place appropriate Workplace Policies. These can apply to employees as well as contractors to a business.
These can cover other issues such as the extension of areas of discrimination and harassment in the FW Act so employers can reasonably argue that all reasonable steps have been taken by them to prevent the discrimination or harassment.
FURTHER INFORMATION
For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
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