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Key employment law changes as we close out 2022

Published

Dec 23 2022

Written By

kristy peacock smith module
Kristy Peacock-Smith

Partner
Australia

thomas du Module
Thomas Du

Senior Associate
Australia

As we come to the close of 2022, employers should note two key Bills recently passed by Parliament: the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 and the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022.

Below, we have summarised the key changes, the impact they will have on employers, and required actions.  

Key change   When and what is changing? Action required 

Paid family and domestic violence leave

 From 1 February 2023, all employees, including casuals, will be entitled to 10 days of paid family and domestic violence leave. Employers should update any relevant policies or procedures, effective from 1 February 2023.
Positive duty to eliminate workplace sexual harassment
 December 2023. There is, however, a 12-month transition period before the positive duty becomes enforceable. In anticipation of the change, employers should be proactively ensuring they take all possible steps to prevent instances of unlawful sex discrimination or sexual harassment, such as collecting and monitoring data, providing appropriate support to employees, and providing regular training and education on the subject.
Flexible work arrangements From 6 June 2023, more employees can request flexible working arrangements. This includes:
  • employees, or a member of their immediate family or household, who is experiencing family and domestic violence; and
  • employees who are pregnant. 
 Before refusing a request for a flexible working arrangement, employers will need to:
  • discuss the request with the employee;
  • make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances;
  • consider the consequences of refusal for the employee;
  • provide a written response that includes:
    • an explanation of the reasonable business grounds for refusing the request and how the grounds apply to the request;
    • oother changes the employer is willing to make that would accommodate the employee’s circumstances or that says there are not any changes;
    • information about referring a dispute to the Fair Work Commission.
Prohibition of pay secrecy clauses

From 7 December 2022, contracts of employment or other written agreements must not contain pay secrecy terms.

The Fair Work Act 2009 (Cth) now provides employees and future employees a new workplace right to:

(a) share or not share information about:

  • their pay; or
  • their employment terms and conditions that would be required in order to work out their pay, such as their hours of work;

(b) ask other employees (with the same or a different employer) about their:

  • pay; and
  • employment terms and conditions that would be required in order to work out their pay, such as their hours of work.

Any contracts of employment entered into prior to 7 December 2022 with existing pay secrecy terms will no longer have effect. 

Employers should review any template contracts of employment, written agreements or workplace policies to remove and/or ensure that there are no pay secrecy clauses. 
Threshold to establish ‘harassment on the ground of sex’ From 13 December 2022, the ‘seriously demeaning’ threshold was amended to align with existing legal standards and other offences under the Sex Discrimination Act 1984 (Cth).

Revise definition of sexual harassment in any policies or procedures to remove the word ‘seriously’ from definition:

Sex-based harassment is any unwelcome conduct of a seriously demeaning nature by reason of the person's sex in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
Prohibition of fixed term contracts

6 December 2023, unless an earlier date is set by the government.

From 6 December 2023, employers can no longer employ an employee* on a fixed term contract that:

  • is for 2 or more years (including extensions);
  • may be extended more than once; or
  • is a new contract:
    • that is the same or a substantially similar role as previous contracts;
    • with substantial continuity of the employment relationship between the end of the previous contract and the new contract, and either:
      • the total period of the contract is 2 or more years;
      • the new contract can be renewed or extended; or
      • a previous contract was extended.
*Note there are some exceptions to this category of employees, eg. the employee has specialised skills that the employer does not have, but needs, to complete a specific task or employees who earn over the high income threshold (currently $162,000).

Engage impacted employees on fixed term contracts for less than two years only.

Consider exceptions for fixed term contracts exceeding two years.

Whilst some of these changes will not be enforced immediately, employers should make every effort to ensure that these changes are considered and updated in their applicable documents in early 2023.

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