Your 2023 HR Checklist: Stay Ahead of the Changes

## Remove your pay secrecy clauses

As we explained in a recent Akyra blog, changes to the Fair Work Act mean that pay secrecy clauses in employment contracts are now prohibited.

For employment contracts entered into on or after 7 December, 2022, pay secrecy clauses should not be included as part of the terms and conditions of employment and, if they are, hold no validity.

Pay secrecy clauses in existing employment contracts are no longer valid and cannot be acted on by an employer.

From 7 June 2023, pay secrecy clauses cannot be included in employment contracts, and any employers who include pay secrecy clauses after this date could face penalties.

## Review your procedures for flexible working requests

Another significant change coming from last year’s industrial relations legislation relates to procedures for flexible working requests under the Employment Relations (Flexible Working) Bill 2022-23.

If you choose to deny a request, you must provide a written response which details the reason that the request has been refused and outline any changes to the employee’s working arrangements (if any) that the employer can accommodate.

It is strongly suggested you speak with the employee to determine whether any accommodation can be made in relation to the flexible working request and, where the request cannot be granted, explain the reasons before providing the written response.

## Explore alternatives to extended fixed-term engagements

If you have employees under fixed-term contracts, it’s important to take note of the recent change in the Fair Work Act 2009 (Cth) (FW Act) which prohibits using fixed-term engagements for a period exceeding two years and no  more than two successive fixed-term contracts. This change will impact how you manage these types of contracts moving forward.

## Review your sexual harassment, bullying, and sex-based discrimination policies

The Respect at Work Bill, passed by the Government last year, implemented a number of recommendations related to workplace sexual harassment and sex discrimination.

All Australian employers now have a positive duty to prevent sexual harassment and discrimination in the workplace (rather than just responding reactively to harassment and discrimination). It is strongly recommended you review existing policies and procedures and update these where necessary. It is also strongly recommended that you be pro-active in ensuring your workforce understands what inappropriate behaviour is and that it won’t be tolerated at any level in your business.

## Revise your bargaining strategy

Recent industrial relations legislation has introduced new considerations for employers when it comes to bargaining strategy. It’s important to assess the risk of being “roped-in” to industry bargaining or subject to compulsory arbitration by the Fair Work Commission. It’s advisable to reassess your bargaining approach and make any necessary updates to align with the latest legislation.

## Explore collective bargaining for small businesses and government-funded organisations

Small businesses and government-funded organisations may have previously overlooked the option of collective bargaining, but recent changes to the Fair Work Act have made it easier for these employers to make enterprise agreements. Consider exploring this option and determining if it could benefit your organisation.

## Reassess your ability to deal with bargaining disputes

With the increased role of the Fair Work Commission in handling bargaining disputes, it’s vital for you to reassess your industrial relations capability. This may mean renewing your membership with an industry association or seeking other means to increase your capacity for handling these types of disputes.

## Review and update your employment agreements/contracts

Employment agreements/contracts should be reviewed to ensure they are in compliance with recent changes to industrial relations legislation, including the prohibition on pay secrecy clauses and the requirement for accurate pay rate specifications in job advertisements. Any necessary updates should be made to ensure your document are compliant with the latest legislation.

## Put your Zombie Agreements to rest

Employers with “zombie agreements” made under the previous WorkChoices laws should take action to replace these agreements before they sunset on December 6, 2023. If necessary, employers may seek an extension of the life of these agreements from the Fair Work Commission.

## Akyra’s key takeaways 

• Prohibitions on extended fixed-term engagements under the Fair Work Act 2009 (Cth) (FW Act) mean that contracts exceeding 2 years must be addressed.
• Pay secrecy clauses are now prohibited and any employment contracts entered into after 7 June 2023 that include them face penalties.
• New procedures for flexible working requests under the Employment Relations (Flexible Working) Bill 2022-23 require written reasons for denial.
• The Respect at Work Bill imposes a positive duty on employers to prevent sexual harassment and discrimination in the workplace.
• New legislation affects bargaining strategies and the role of the Fair Work Commission in handling disputes.
• Small businesses and government-funded organisations can now explore collective bargaining options.
• Employment agreements/contracts should be reviewed for compliance with recent changes to industrial relations legislation.
• Zombie agreements under the previous WorkChoices laws must be replaced before December 6, 2023.

In conclusion, it’s crucial for employers to stay up to date with the latest changes in industrial relations and employment law.

With the fast-paced evolution of legislation and regulations, it can be challenging for employers to keep up and make the necessary changes to their practices. This is where Akyra can help!

If you have any questions about the changes outlined in this blog post, or if you would like assistance in updating your HR practices, please reach out to us for an obligation-free conversation.

Our team of experts is always on hand to provide guidance and support to help ensure your organisation remains compliant and in line with the latest laws and regulations. Contact us today and let us help you get ahead in 2023!