Work laws to affect doctor employers

On 6 December 2022, the landmark Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (the Amendment Act) received Royal Assent. The Amendment Act will implement changes to federal industrial relations laws, including the Fair Work Act 2009 (Cth) (the FW Act). The amendments to the FW Act are extensive and are occurring between 7 December 2022 and 6 December 2023.

In this article, Norman Waterhouse’s Employment and Safety team summarise some of the key changes brought about by the Amendment Act and how they will affect your workplace.

The Amendment Act aims to strengthen job security for workers and encourage secure and permanent employment. From 6 December 2023, employers will be prohibited from entering fixed-term contracts where:

• the contract is for two or more years

• the term of the contract and any renewal and extension in the contract exceeds two years

• there is an option to extend or renew the contract more than once

• the previous fixed term contract was for the same or substantially the same work

• there is substantial continuity of the employment relationship during the period of the new contract and previous contract.

There are some limited exceptions where a fixed-term contract of more than two years will be permitted. These exceptions include, among other things, if the employee is engaged during emergency circumstances or during the temporary absence of another employee (e.g., maternity cover). Importantly, employers will bear the onus of establishing that their fixed-term contracts are not in breach of the new requirements or are otherwise exempt.

Similar to their obligations to casual employees (as noted below), employers also must provide a Fixed Term Contract Information Statement to employees who enter a fixed-term contract.

Employers should review their current fixed-term employment arrangements, with particular attention to the number of fixed-term arrangements implemented (i.e., how many previous fixed-term contracts have been issued to a particular employee) and the removal of renewal terms in those contracts.

The Amendment Act has implemented a more prescriptive process for an employer to follow if they receive an employee’s request for flexible working arrangements. Within 21 days of receiving a request, an employer must:

• approve the request

• have discussed and agreed to the requested work arrangement, or

• have discussed and refused the requested work arrangement and provided ‘reasonable business grounds’ for the refusal.

The Amendment Act also empowers the FWC to deal with disputes resulting from such a request. Employees will be able to commence proceedings in the FWC if the employer refuses their request or fails to respond within 21 days. The FWC will have broad powers to make a range of orders when arbitrating such disputes.

‘Pay secrecy’ – clauses in current employment agreements will have no effect, and their inclusion in future employment agreements is prohibited. Further, employees have the discretion to disclose their pay and any other employment terms relevant to their pay.

‘Sexual harassment’ – sexual harassment in connection with work will be expressly prohibited, with employers now vicariously liable (unless particular exemptions are satisfied). The FWC can, on application by an aggrieved party, make a ‘stop sexual harassment order’.

‘Casual conversion’ – while not an amendment arising from the Amendment Act, the rights of casual employees in the FW Act were strengthened in the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021. These changes were largely bolstered by landmark findings of the Federal Court of Australia in 2020 (and the High Court of Australia in 2021) regarding the nature of casual employment.

A casual employee is now defined in section 15A of the FW Act as a worker who is granted ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern of work’.

Further, the FW Act now imposes a statutory obligation on an employer to offer casual employees the right to convert to permanent employment, where the employee:

• has worked for their employer for 12 months; and

• has worked a regular pattern of hours for at least six months on an ongoing basis, and

• could continue working those hours as a permanent employee without significant changes.

However, an employer is entitled to not make (or refuse) an offer for conversion on ‘reasonable grounds’, which includes where the casual employee’s position will cease to exist within the period of 12 months of the decision not to offer the conversion, or the employee’s hours of work will be significantly reduced during that period.

When engaging a new casual employee, employers must provide each new casual employee with a Casual Employment Information Statement as soon as practicable after the worker is employed, but ideally at the time of hiring.

For more specific information or advice regarding the changes and the impacts they may have on your workplace, please contact Lincoln Smith, Principal, on (08) 8217 1203 or at lsmith@normans.com.au