FAIR WORK ACT CHANGES

Is your practice up to date with the latest changes to the Fair Work Act?

AMA (NSW)’s Felicity Buckley and Lisa Bennell detail what employers need to know to ensure they don’t fall afoul the new rules.

THE FAIR WORK Legislation Amendment (Secure Jobs Better Pay) Act 2022 made changes to the Fair Work Act 2009 (the Act) last year. This article examines the changes and what they mean for medical practices.

Sexual Harassment In The Workplace

The Act now expressly defines and prohibits workplace sexual harassment, separating it from other workplace issues such as bullying.

The new provisions make it expressly unlawful for a person to sexually harass another person who is:

• a worker in a business (including contractors, volunteers, trainees and work experience students); or

• seeking to become a worker in a business; or

• a person conducting a business.

These changes came into effect on 6 March 2023.

The means by which the Fair Work Commission (FWC) may address and deal with claims of sexual harassment in the workplace have increased.

Workers will now have the choice to pursue disputes through the FWC, the Australian Human Rights Commission or via state and territory anti-discrimination processes. The new FWC dispute resolution process permits FWC to deal with disputes through conciliation or mediation. Where a dispute cannot be resolved in this way, and parties agree, the FWC can determine the dispute and make orders including orders for compensation.

What does this mean for employers?

The changes extend the liability of an employer or principal of a business, as they may be held to be vicariously liable for their employees or agents conduct that may amount to sexual harassment. The employer must be able to demonstrate that they took reasonable steps to prevent the conduct to avoid liability.

These changes have been implemented to ensure workplaces adopt a preventative approach to sexual harassment. Employers should ensure:

• they introduce or update workplace sexual harassment policies,

• provide training and education to everyone in the medical practice, and

• provide a supportive environment for all workers.

Prohibition On Pay Secrecy Clauses

The amendments to the Act prohibit pay secrecy clauses in employment contracts, improve transparency, and give employees a positive right to disclose, or not disclose, their remuneration to others.

Pay secrecy clauses included in new employment contracts from 7 December 2022 will have no effect, and from 7 June 2023 will attract penalties.

Pay secrecy clauses in employment contracts in place prior to 7 December 2022 will continue to have effect, until those contracts are varied, in which case such clauses should no longer be included and will be of no effect.

What does this mean for employers?

Employees are free to choose whether to discuss and disclose their remuneration arrangements to others and they are protected from adverse action if they exercise their right to disclose or not disclose their remuneration.

Employers are not required or expected to hand over or disclose details of employee remuneration.

Employment contracts issued after 7 December 2022 should not include pay secrecy clauses, and we recommend you review your current employment contracts.

Current agreements and contracts of employment which do not have pay secrecy terms are not affected.

It is important that employees are not treated differently because they have disclosed (or have not disclosed) their remuneration details to others.