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Secure Jobs, Better Pay: Four Important changes to Employment Law in 2023

By Ethan Kilham

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (‘SJBP Act’) effected four key changes to Australian Employment Law in 2023, which this article will explore.

 1.       Introduction of Paid Family and Domestic Violence Leave

Paid Family and Domestic Violence Leave is now part of the National Employment Standards (‘NES’), entitling all employees – full-time, part-time and casual – affected by Family and Domestic Violence to ten days’ paid leave in a twelve-month period.

Employees do not have to accrue this leave over time, with all ten days being available upfront. An employer must not include certain information on an employee’s pay slip in relation to taking this leave.

These changes had a delayed commencement for employees of small businesses (which are defined as employers with 15 or fewer employees). The commencement dates were as follows:

  • 1 February 2023 for all non-small business employers; and

  • 1 August 2023 for all small business employers.

 2.       Prohibition on sexual harassment and Fair Work Act 2009 (Cth) amendments

The SJBP Act amends the Fair Work Act 2009 (Cth) (‘FWA’) to include a prohibition on sexual harassment, introducing greater protections for all workers and greater levels of accountability for employers, commencing 6 March 2023.

These prohibitions are against ‘unwelcome conduct of a sexual nature’ where a reasonable person would anticipate that the person harassed would be ‘offended, humiliated or intimidated’ by the unwelcome conduct.

Circumstances considered include (but are not limited to):

  • the sex and attributes (including the age, gender identity, marital or relationship status, race, color or ethnic origin) of the person harassed;

  • the relationship between the person harassed and the person who engaged in the conduct;

  • any disability of the person harassed; and

  • any other relevant circumstance.

The amendments give workers a new way in which to deal with sexual harassment in the workplace. Workers will have the choice to pursue any contraventions of the protections provided through the Fair Work Commission (‘FWC’). The FWC is able to deal with disputes using conciliation, mediation and arbitration.

  3.       Sunsetting of zombie agreements

Provisions of the SJBP Act relevant to the sunsetting of zombie agreements commenced 7 December 2022. Zombie agreements are defined as those agreements made prior to the commencement of the FWA, being 1 July 2009.

While zombie agreements are rare, indicators of such an agreement include references to the now superseded Workplace Relations Act 1996 (Cth) and use of terminology such as “collective agreements”, “workplace agreements” and “Australian workplace agreements”.

The SJBP Act provides a grace period for the continuation of such agreements of 12 months, by which point, on 7 December 2023, they will be automatically terminated. Notice must be given by employers to employees of this upcoming termination by no later than 6 June 2023.

The amendments provide for the ability to apply to the FWC to extend the default period, to a maximum of four years.

 4.       Changes to FWA and Paid Parental Leave Act 2010 (Cth) (‘PPL Act’)

Parental leave entitlements have been expanded through the introduction of two legislative provisions:

  1. The SJBP Act; and

  2. The Paid Parental Leave Amendment (Improvements for Families and Gender Equality) Bill 2022 (Cth) (‘PPLA Bill’).

The SJBP Act, as of 6 June 2023, amends the FWA by strengthening the right of employees to request an extension of unpaid parental leave. In the event of a dispute between employer and employee in relation to such a request, these amendments empower the FWC to deal with the dispute, including by conciliation, mediation or mandatory arbitration. There is now an obligation for an employer to discuss a request for an extension of unpaid parental leave with an employee, and in the event of refusal, to provide reasons in writing.

The PPLA Bill amends the PPL Act with the aim of broadening access, flexibility and gender neutrality with the changes affecting employees whose baby is born after 1 July 2023. The PPLA Bill amends the existing 18-week scheme provided by the PPL Act to a single 20-week scheme. In summary:

  • Partnered employees may claim a maximum of 20 weeks’ pay between them, with each partner taking at least 2-weeks;

  • Employees who are single at the time they claim are eligible for the complete 20 week parental leave pay;

  • Expansion of eligibility by introducing a $350,000.00 family income test, under which claimants can qualify for parental leave pay should they not meet the prior individual income test of $156,647;

  • Payments are now flexible, such that the payments can be made in multiple blocks until the child turns 2 (no requirement to take it all at once) and abolishment of the requirement not to return to work in order to be eligible.

 This year we have witnessed significant changes for employers and employees alike. Should you require assistance in relation to your rights or responsibilities, please contact Eve Lynch.

 

Disclaimer

The above does not constitute legal advice, but is information which may be of general interest. Beswick Lynch Lawyers will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.

Eve Lynch