Fair Work Act changes from 6 June 2023

SINCE LATE 2022, THE AUSTRALIAN GOVERNMENT HAS BEEN STEADILY INTRODUCING CHANGES TO THE FAIR WORK ACT 2009 WHICH WILL HAVE SIGNIFICANT IMPACTS ON HRIA AND EWPA MEMBERS. THIS ARTICLE SUMMARISES SOME OF THE KEY CHANGES COMING INTO EFFECT FROM 6 JUNE 2023 WITH WHICH MEMBERS MUST COMPLY.

Termination of Zombie Agreements

The Australian Government has determined that all ‘Zombie Agreements’, being those registered workplace agreements which commenced operation prior to 1 January 2010, will automatically terminate on 6 December 2023.

To comply with their obligations, all members who are subject to a pre2010 agreement (such as a Collective Agreement or Certified Agreement) must advise their employees, no later than 6 June 2023, that their agreement will cease operation on 6 December 2023.

Additionally, members who are subject to a ‘Zombie Agreement’ must now consider whether they wish to (a) enter into a new enterprise agreement or (b) operate under the modern award system.

Irrespective of which option that a member chooses, they will need to understand which modern awards apply to their business and employees.

To assist members, MST Lawyers provides an HRIA Modern Award summary in June each year which provides members with a summary of the most commonly applicable modern awards. A copy of this summary is available on the HRNet website.

Pay Secrecy Clauses

From 6 June 2023, members must not enter into an employment agreement with a new employee that contains a clause prohibiting an employee from discussing their wage rate with another employee, or asking that employee their wage rate. Pay secrecy provisions are often contained in confidential information clauses in employment agreements. Penalties will apply to employers who enter into an employment agreement which contains a pay secrecy clause from 6 June 2023.

In circumstances that an employee is already employed, and their employment agreement contains a pay secrecy clause, there is no requirement to update their employment agreement. Rather, the pay secrecy clause will be read as if it does not exist.

Further, from 6 June 2023, all employees will have the right to tell an employee their wage rate and ask another employee their wage rate. As a result, employers will not be able to take adverse action (such as the termination of their employment) against an employee for doing so, otherwise they face the risk of the employee bringing a General Protections claim.

Section 65 - Flexible Work Arrangement Requests

Since the commencement of the Fair Work Act, employees in a discrete list of categories have been entitled to request a flexible work arrangement, including a request to vary their employment to part-time.

The categories have been expanded over the duration of the Fair Work Act and currently include: