Fair Work Act changes: how most employers will be impacted

The amendments to the Fair Work Act passed parliament on 2^nd December and will soon be signed into law. The public and political focus has been confined mainly to the multi-employer bargaining changes, but there are other, more generalist, matters likely to affect most employers in some way. These are summarised as follows;

Flexible working arrangements

The key change here is that now the FWC will be able to arbitrate disputes and order employers to make changes to an employee’s work arrangements e.g. where the employee has carer responsibilities.

Equal remuneration 

This is predominantly about FWC making orders if work has been undervalued because of assumptions based on gender. To be clear, this has nothing to do with “equal pay for work of equal value” which is a long-standing practice; it is focused on low-paid occupations where there is a preponderance of one gender in the workforce.

Pay secrecy

Employment contract provisions which require employees to refrain from discussing their contents with other employees will be null and void. There can be no contractual bar on openness in salary and conditions discussions between employees.

Sexual harassment

The new laws strengthen vicarious liability for unlawful acts of employees, except where an employer proves that all reasonable steps to prevent the employee from contravening the law were taken. The definitions of who are caught by the legislation have broadened and now include contractors, volunteers and customers/clients. Stop sexual harassment orders can be made on application to the FWC. And a union or the FWO can initiate these applications on behalf of an employee. If the FWC can’t resolve a matter, it can issue a certificate and the employee can then proceed to a court if they wish, in a similar way the adverse action provisions of the Act operate now.

Anti-discrimination

Here is the addition of new attributes subject to the existing prohibitions (adverse action) and these relate to breastfeeding, gender identity and intersex status.

Fixed term contracts

As part of the measures aimed at ‘insecure work’, contracts including outer limit contracts cannot operate for a period greater than two years, they can’t be extended or renewed for a period greater than two years in total or have an option to extend or renew the contract more than once. There are a limited number of exceptions available with the onus squarely on the employer to prove the exemption complies in the event of a challenge.

Zombie agreements

All enterprise agreements made prior to 1/1/2011 will be automatically cancelled unless an application to FWC is made to extend its life. However the criteria for extension are such that few if any will survive. Most will expire one year from commencement of this new law.