UNIONS HAVE WON NEW WORKPLACE LAWS PAY SECRECY - BANNED

Strong new laws won by unions now prevent employers from keeping pay secret.

Why is pay transparency important?

Pay transparency is powerful. It provides workers the knowledge and proof to spot if pay discrimination is occurring.

Union members have been campaigning for these reforms for years.

Pay secrecy clauses have been used to stop workers from discussing their wage with co-workers as a tactic to prevent the sharing of wage rates and organising for more equitable pay and conditions.

This has serious consequences for equity, and means employees have no way of knowing if they are paid the same as their colleagues.

Banning pay secrecy will improve transparency, allowing workers to compare their pay with that of their co-workers and will put you and your co-workers in a stronger position to bargain for improved pay and conditions.

What do these changes mean for me?

Employers will no longer be able to put a clause in contracts that prevent workers from discussing their pay. In 2022, the Fair Work Act 2009 (FWA) was amended to give employees the right to discuss pay and related conditions even if they have a pay secrecy clause in their contract.

You now have the right to:

» tell any other person your own pay, including at previous employers

» tell any other person about any terms and conditions of employment that are reasonably necessary to determine your pay, such as the number of hours you work

» ask other employees about any of the above, whether they are employed by your employer or a different employer.

Transparency enables employees to discuss pay differences openly with co-workers and managers without fear.

This means you cannot be disciplined, fired or refused a new job if you decide to disclose your wage. New laws will also require companies with 100 or more employees to disclose how much they are paying their workers. For too long, individual employers have been able to evade scrutiny and will now be held to account.

Will this affect my contract of employment?

These laws started on 7 December 2022. They apply differently to contracts made before and after that date:

» pay secrecy clauses included in new employment contracts from 7 December 2022 will have no effect, and from 7 June 2023 will be punished by penalties under the FWA

» pay secrecy clauses in employment contracts made before 7 December 2022 continue to apply until a new contract is made or the existing contract is varied. Contract variations don’t need to be made in writing. Your contract can be varied orally or by your employer’s conduct. For example, if you are given new duties not included in your contract or are given a pay increase that’s not written into your contract, then your contract has been varied.

Awards and Agreements

Pay secrecy clauses will not appear in any new contracts. Terms in awards or enterprise agreements have no effect and cannot be enforced after 7 December 2022.

If you need support or information about pay secrecy or your contract of employment, please contact us at:

Services Union

C A N I C H A N G E J O B S W H E N O N

W O R K C O V E R I N Q U E E N S L A N D ?

I f y o u ’ v e b e e n i n j u r e d a t w o r k i n Q u e e n s l a n d a n d y o u a r e i n r e c e i p t o f W o r k C o v e r b e n e f i t s , y o u c a n c h a n g e j o b s b u t i t m a y h a v e a n e f f e c t o n y o u r w o r k e r s ’ c o m p e n s a t i o n c l a i m T h e r e a r e a l o t o f f a c t u a l s c e n a r i o s t o c o n s i d e r i f y o u ’ r e t h i n k i n g o f c h a n g i n g j o b s w h i l e y o u ’ r e i n r e c e i p t o f w o r k e r s ’ c o m p e n s a t i o n b e n e f i t s . Y o u ’ l l n e e d t o c o n s i d e r a n y e f f e c t s o n y o u r s t a t u t o r y e n t i t l e m e n t s l i k e w e e k l y p a y m e n t s a n d a l s o a n y i m p a c t o n a n e n t i t l e m e n t t o c o m m o n l a w d a m a g e s w h e r e y o u r i n j u r y w a s c a u s e d b y n e g l i g e n c e

S o m e o f t h e r e l e v a n t i s s u e s t o b e c o n s i d e r e d b e f o r e s w i t c h i n g c a r e e r s o r c h a n g i n g e m p l o y e r s a r e l i s t e d b e l o w .

If you’re in receipt of WorkCover benefits in Queensland, you’ll be required to provide ongoing workers’ compensation medical certificates. Your medical certificate may have restrictions listed in terms of hours you can work, tasks you can and cannot do or general capacity.

It is very important that you abide by the restrictions listed on your medical certificate. You need to ensure that you are medically fit to perform any new duties expected of you at the new workplace.

If the injury will affect your ability to perform the duties expected, you will generally be required to disclose the injury to the new employer. For example, if you require some modifications at the workplace to enable you to perform your duties, given your injury, you will need to disclose the injury to your new employer. Failure to disclose this information can have a detrimental effect on any common law claim and/or any further WorkCover statutory entitlements, for example if you were to aggravate your injuries at the new employer.

A change in job does not affect your entitlement to seek medical and rehabilitation expenses. However, your weekly payments may be terminated. There are various factors to be considered here, such as: your capacity for work; new weekly wages (did you get a pay rise or a drop in pay?); whether you are changing jobs following a dismissal; and if you are seeking a new role with duties more suitable to the restrictions imposed by an injury.

A complete understanding of the details and facts related to your individual circumstances is required to understand your entitlements. You should seek immediate legal advice from your union or a worker’s compensation lawyer to protect your rights and entitlements.

If there was an unfair dismissal involved, you should consult an employment lawyer immediately as there are strict time limits for issue unfair dismissal proceedings.

You have an obligation to inform WorkCover Queensland if you are changing jobs. These obligations will continue to apply for the duration of your workers’ compensation claim or until any common law claim you may have, is resolved and finalised.

Whilst in receipt of workers’ compensation benefits, it is important that you disclose: any alternate income sources; any voluntary or unpaid work; any second jobs; or if you commence a new role with a new employer.

Failure to comply with your disclosure obligations whilst in receipt of workers’ compensation benefits can result in serious penalties to you.

To be successful in a common law claim, you must prove liability; that is, that your employer or some other party who owed you a duty of care was negligent for the incident that caused your injuries.

For a successful common law claim, it is important to establish causation; that being, a link between the negligence of someone who owed a duty of care, to the injury and resultant loss and damage.

Obviously, a change in employment and a subsequent incident leading to further injury while your common law claim is active, may complicate the causal chain of your claim. Your existing common law claim will be affected if you sustain a new injury or aggravate the existing injury.

A new incident leading to new or aggravated significant injury may also delay the resolution of your common law claim. In serious cases, a new intervening incident may break the chain of causation from the initial incident. This can have a detrimental impact on the damages that flow from the original incident.

When considering causation, and the impact of any subsequent incidents/injuries advice should be sought from an experienced personal injury lawyer.

G E T H E L P

It’s understandable that an injured worker may feel like moving onto a new employer. The work relationship might be strained or there may be a genuine fear of re-injury or a desire to move on to a less demanding role better suited to the changed circumstances. However, this is not a minor decision as it can impact your benefits and entitlements.

If you are currently in receipt of workers’ compensation benefits and are considering changing jobs, we recommend you seek legal advice from a lawyer experienced in Queensland workers’ compensation and personal injury claims.

Author: Suraj Shrikumar Personal Compensation Law Brisbane, QLD