The past year was very busy for workplace relations and 2023 promises to be no different.

The latter half of 2022 contained multiple legislation amendments that will affect employers in 2023 and beyond, including the Secure Jobs, Better Pay Bill; the Paid Family and Domestic Violence Leave Bill; the Respect@Work Bill; and parental leave, minimum pay and superannuation increases.

Secure Jobs, Better Pay amendment to the Fair Work Act 2009

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 passed and received royal assent in December 2022.

It addresses, among other things, job security, gender equity, enterprise bargaining and flexible working arrangements. Changes emerging from the Bill include the following.

•    The prohibition of pay secrecy clauses—new contract terms prohibiting discussion of remuneration will no longer have effect and it will be considered a workplace right for an employee to disclose (or refuse to disclose) information concerning their remuneration or to ask other employees about their remuneration.
•    Flexible working arrangements—while requests for flexible working arrangements are already permitted, employers will now be required to genuinely try to reach agreement before refusing the request (eg, by suggesting alternative options). Employees may also dispute a refusal with the Fair Work Commission, which will have the power to grant an employee’s request.
•    Fixed-term contracts—the end date in new fixed-term contracts covering a period of two or more years (including extensions or consecutive contracts) will no longer have effect for all contracts entered into 12 months after the Bill received royal assent. Some exceptions apply, such as for those engaged on training agreements or those earning above the high-income threshold—currently $162,000.
•    The prohibition of sexual harassment in connection with work— protections against sexual harassment will be expanded to include not just sexual harassment between two employees, but also any sexual harassment involving third parties such as contractors, suppliers or members of the general public.
•    Anti-discrimination measures—the Bill will add breastfeeding, gender identity and intersex status to the list of attributes protected from discrimination.
•    Multi-employer bargaining—this will essentially be split into three streams: single-interest bargaining, supported bargaining and cooperative workplaces bargaining. The better off overall test has also been amended to simplify the process of assessing whether an employee is better off overall compared to under the modern award.

Considering their scope, these changes are unlikely to have a significant effect on small businesses.

While some changes will take immediate effect, others will have staggered commencement dates to allow for a smooth transition.

Paid Family and Domestic Violence Leave amendment

Another amendment to the Fair Work Act 2009, the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, passed earlier in the year.

It will raise the entitlement in the National Employment Standards from five unpaid days to 10 days of paid family and domestic violence leave.

This will be paid at the employee’s ordinary rate of pay and casual employees will also be entitled to it. The entitlement will reset each year instead of accruing progressively like annual leave.

It will take effect from 1 February 2023 but small businesses (those with 14 employees or fewer) will be given a grace period of an additional six months to prepare for the changes.

Respect@Work amendments

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, which amends a number of Acts, passed Parliament in November 2022. With it come changes to help prevent sexual harassment in the workplace, including:

•    assigning a positive duty for employers to take a proactive stance on preventing sexual harassment, sex discrimination and other related victimisation in the workplace. This means that businesses should not merely ‘react’ to instances of sexual misconduct but should put preventive steps in place before any such conduct occurs
•    making it an offence to subject another person in the workplace to material that is hostile on the basis of sex. This includes the displaying of obscene material, sexually related ‘banter’ or any other jokes or comments that are offensive or might make someone feel excluded, intimidated or humiliated
•    enabling the Australian Human Rights Commission to investigate instances of systemic, unlawful workplace discrimination and issue compliance notices if it believes employers have failed to meet their obligations.

These provisions have now taken effect after the Bill received royal assent on 12 December 2022. However, changes allowing the Australian Human Rights Commission to investigate workplaces and issue compliance notices will not take effect until 12 months from this date.

Employers should review their current sexual harassment policies and procedures to ensure that they are in compliance with the amendments.

Parental leave changes

The federal government’s current 18-week Parental Leave Pay and two-week Dad and Partner Pay will be combined from 1 July 2023 into one 20-week Paid Parental Leave payment. From 2024, it will increase by two weeks per year until it reaches 26 weeks in 2026.

Other changes include allowing either parent to access parental leave pay, allowing both to access it at the same time and allowing it to be taken in smaller blocks.

National minimum wage and minimum award rate increases

The national minimum wage and minimum award rates will increase in accordance with determinations by the Fair Work Commission. These will likely take effect in the first pay period beginning on or after 1 July 2023.

Superannuation guarantee contributions rate increase

The minimum superannuation guarantee rate will increase from 10.5 per cent to 11 per cent from 1 July 2023. Any payments made on or after this date must reflect the increase.

In summary

There will be a number of important changes in workplace relations over 2023 and the HR in Practice service will reach out to members as further developments take place. This article was written in early December 2022 and all information was accurate at the time of writing.

>>The HR in Practice specialist workplace relations and work (occupational) health and safety advisory service is operated by Wentworth Advantage. APA Business Group Premium Principal members can contact the HR in Practice service on 1300 138 954 or hrinpractice@australian.physio or visit australian.physio to access the full suite of online resources. For more information about joining the APA Business Group, email info@australian.physio or call 1300 306 622.