Fair Work Act Amendments Commencement Dates

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By Berall JeAnns, Summer Clerk, Harriet Boothman, Associate and William Ward, Partner

There are lots of changes to employment laws taking effect this year following the passing of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The following guide is intended to highlight when key amendments commence operation in order to assist our clients to navigate the most important and relevant changes.

Commencement Amendments
7 December 2022
  • Changes to Objects of the Fair Work Act
  • Prohibiting pay secrecy
  • Anti-discrimination and special measures
  • Termination of enterprise agreements after nominal expiry date
  • Sunsetting of ‘zombie’ agreements
  • Initiating bargaining
  • Dealing with errors in enterprise agreements
  • Prohibiting job advertisements that would breach the Fair Work Act
1 February 2023
  • Paid family and domestic violence leave for employees of employers with 15 or more employees
6 March 2023
  • Prohibiting sexual harassment in connection with work
6 June or an earlier date to be fixed by proclamation
  • New Enterprise Agreement approval requirements
  • Changes to Bargaining
6 June 2023
  • Flexible work
  • Unpaid parental
1 July 2023
  • Enhancing small claims processes
1 August 2023
  • Paid family and domestic violence leave for employees of small business
6 December 2023
  • Fixed term contracts

Changes to Objects of the Fair Work Act (7 December 2022)

  • Gender equality and job security are now objects of the Fair Work Act.
    • This means they must now be taken into account when exercising powers under the Act.
  • The Modern awards objective now includes secure work and gender equality, and the Minimum wages objectives includes gender equality.

Prohibiting Pay Secrecy (7 December 2022)

  • Employees can disclose to another person/ask another person their pay and any terms and conditions that determine their remuneration.
  • New contracts cannot contain pay secrecy clauses.
  • Employers have a 6-month grace period to update employment contracts. Otherwise from 7 June 2023 employers may be liable for 60 penalty units, or 600 penalty units for a serious contravention.

Anti-discrimination and special measures (7 December 2022)

  • Gender identity, intersex status and breastfeeding are now protected attributes.

Termination of enterprise agreements after nominal expiry date (7 December 2022)

  • The Commission now must terminate an enterprise agreement under certain circumstances, including if the continued operation would be unfair to employees.

Sunsetting of ‘zombie’ agreements etc. (7 December 2022)

  • Collective agreements made before the Fair Work Act 2009 commenced (including those made before the better off overall test commenced) will sunset on 6 December 2023.

Initiating bargaining (7 December 2022)

  • New rights for employee bargaining representatives to be able to start bargaining.

Dealing with errors in enterprise agreements (7 December 2022)

  • The Commission can now correct or amend an obvious error, defect or irregularity (whether in substance or form).

Prohibition on job advertisements that would breach the Fair Work Act (7 December 2022)

Paid family and domestic violence leave (1 February 2023)

  • Employees (including casuals) of big businesses (i.e. more than 15 employees) are now entitled to 10 days of paid family and domestic violence leave every 12 months.
  • However, this leave will only be available from 1 August 2023 for employees of small business employers (less than 15 employees). Employees of non-small business employers can access this leave from 1 February 2023.

Prohibiting sexual harassment in connection with work (6 March 2023)

  • New protections apply for workers and various penalties may apply. The protections apply for workers, persons seeking to become workers, and persons conducting or undertaking a business to be protected from sexual harassment in connection with work.
  • Vicarious liability provisions will apply. The employer will also be taken to have done the act unless the employer proves they took all reasonable steps to prevent the employee from doing acts that contravene this section.
  • Employers who cannot prove that they took all reasonable steps could be liable for 60 penalty units.

New Enterprise Agreement approval requirements (6 June or an earlier date to be fixed by proclamation)

  • Prescriptive and complex pre-approval requirements are streamlined, including a new, single requirement that the Commission must be satisfied that an agreement has been genuinely agreed to by employees.
  • The application of the BOOT is clarified to make clear that a global assessment is required and not a line-by-line comparison with the relevant modern award.
  • New variation provisions will make it easier to vary multi-enterprise agreements to remove employers and their employees.

 Changes to Bargaining (6 June or an earlier date to be fixed by proclamation)

  • The Commission will be able to issue intractable bargaining declarations on application by a single bargaining representative.
  • Protected Industrial Action will be able to be taken in relation to a single interest employer agreement or a supported bargaining agreement (with new notice provisions allowing protected action to commence with 120 hours notice).
  • New Supported Bargaining scheme will commence.

New Flexible Work Changes allow employees to request flexible work if they are pregnant or experiencing family and domestic violence (6 June 2023)

Unpaid parental leave (6 June 2023)

  • Employers must respond to requests to extend leave within 21 days.
  • Employers may refuse these requests on ‘reasonable business grounds’, such as the extension would be too costly, there would be no capacity to change other employee’s working agreements to accommodate the request, it would result in a significant loss in productivity, would have a negative impact on customer service etc.
  • Employees will be able to challenge an employer’s refusal in the Fair Work Commission, which can resolve such disputes by conciliation and then arbitration if necessary.

Enhancing small claims processes (1 July 2023)

  • The maximum amount that can be awards through small claims court proceedings will increase from $20,000 to $100,000.
  • The Court can award filing fees as costs to successful applicants.

Paid family and domestic violence leave for employees of small business (1 August 2023)

Fixed term contracts (6 December 2023)

  • A contract of employment must not include a term that provides the contract will terminate at the end of an identifiable period if:
  1.  the period is greater than 2 years; or
  2.  the contract can be renewed so that the employee is employed for more than 2 years; or
  3.  in certain circumstances, the employee is employed under consecutive contracts
  • There are certain exceptions under section 333F such as when an employee is engaged under the contract to perform a distinct task using specialised skills, earning above the high-income threshold, undertaking essential work during a peak demand period, during emergency circumstances or temporary absence of another employee etc.
For further information, please do not hesitate to contact us.

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