Your business policies are now out of date. Why?
Since being elected in May 2022, the Federal Labour Government’s agenda has been filled with reforms to industrial relations (“IR”) laws. Subsequently, the passing of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (“SJBP Act”) requires employers to be on their A-game when it comes to their policies and how they are implemented within their business, all to stay compliant with the Fair Work Act 2009 (Cth) (“FW Act”).
If you’re an employer thinking “Great. What policies should I update now?”, then look no further than below. Businesses, amongst being across minimum entitlements and award-rates, need to be conscious of changes in the following areas that might affect their policies and contracts:
- flexible working arrangements;
- gender pay gaps and pay secrecy;
- sexual harassment;
- family and domestic violence leave;
- anti-discrimination measures; and
- fixed term contracts.
Here are our recommendations on the policies to consider updating to stay compliant with the IR updates.
FLEXIBLE WORKING ARRANGEMENTS
What you should update: Flexible Working Arrangement and Leave Policies.
Business owners should have already had policies surrounding flexible working arrangements – but if you didn’t, now’s your chance to create one and be up to date! This amendment impacts existing policies such as flexible working arrangement policies and leave policies (where flexibility requests are mentioned).
From 6 June 2023, the right to request flexible working arrangements will also apply to employees, or a member of their immediate family or household, who are experiencing family and domestic violence, and employees who are pregnant.
Additionally, new obligations will be imposed on employers before an employer is able to refuse a request from an employee for a flexible working arrangement. Employers will have to discuss the request with the employee, make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances, consider the impact on the employee if the request is refused, and provide a written response to the employee’s request within 21 days.
Flexible working policies should be updated to reflect these changes and ensure you remain compliant with the FW Act.
GENDER PAY GAPS AND PAY SECRECY
What you should update: Employment Contracts and Codes of Conduct.
With gender equity being included as an object of the FW Act and an objective of the award wage minimum, it’s critical that employers are compliant with the new gender equity amendments. This is where checking your employment contracts and codes of conduct is important – pay secrecy clauses are now unlawful and the reforms gives employees new workplace rights to share (or not share) information about their pay and employment terms and conditions.
Employers need to be cognisant that such clauses that are still contained within (now) outdated employment contracts could expose them to civil penalties. This, much like each update in this article, is not something to take lightly. That’s why we recommend getting in early and updating your policies – or if you’re not sure, speak to us about how we can help.
SEXUAL HARASSMENT
What you should update: Equal Opportunity, Harassment and Discrimination Policies, Codes of Conduct, Occupational Health and Safety Policies and Behaviour Policies.
Sexual harassment “in connection with work” is now expressly prohibited under the SJBP Act and can result in serious penalties if breached. Additionally, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 was passed in December 2022 and introduces a duty for employers to take ‘reasonable and proportionate measures’ to eliminate unlawful sexual harassment from the workplace.
As an employer, you should ensure that your policies expressly outline your duty, the prohibition and the appropriate steps taken. Promoting a safe and respectful workplace and ensuring that you comply with the positive duty are paramount to ensure you maintain your responsibilities to your employees and the law.
FAMILY AND DOMESTIC VIOLENCE LEAVE
What you should update: Leave policy.
10 days of paid family and domestic violence leave is now, or will be, available to employees. The paid entitlement is available from:
- 1 February 2023 for employers with more than 15 employees (‘non-small’ business employers); or
- 1 August 2023 for employers with less than 15 employees (‘small business employers’).
All employees are entitled to this leave, including casuals. This leave does not accrue but renews annually.
Your leave policy should consider including a specific clause with the entitlements outlined to ensure you meet the National Employment Standards (NES). For more information, see the Fair Work Commission.
ANTI-DISCRIMINATION MEASURES
What you should update: Diversity Policy and Equal Opportunity, Bullying and Harassment Policy
“Breastfeeding”, “gender identity” and “intersex status” definitions are now included in the general protections provisions of the FW Act, allowing for consistency of defined terms with other Commonwealth anti-discrimination laws, such as the Sex Discrimination Act 1984 (Cth). These changes have already come into effect
FIXED TERM CONTRACTS
What you should update: Employment contracts
Employers should consider the new amendments introduced by the SJBP Act and how they will affect the way contracts are made between employer and employee. The SJBP Act prohibits fixed term contracts with a term longer than two years. While there are several exceptions, employers should be aware of the prohibition to ensure employment contracts are valid and compliant with the FW Act. If you don’t need to use fixed-term labour, it might be time to consider moving away from it. If you do – you should make sure your contracts don’t breach the new requirements.
The IR reforms are here to stay, and we want to make sure you’re ready for a great 2023. We know that updating policies and contracts can be confusing. We get it!
If you would like specialist assistance to give you peace of mind, contact us on 03 9087 6949 or support@workplacewizards.com.au.
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