Key changes to Australian employment law

On 6 December 2022, the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 received Royal Assent, amending the Fair Work Act 2009 (Cth). The key amendments to the Fair Work Act are as follows:  

1. Casual Conversion – currently in effect  

• Casual conversion is allowing casual employees to become employed on a permanent basis.  
• It is available for an eligible casual employee, being one who: 
  • Has been employed for at least 12 months; 
  • Has worked regular pattern of hours during the last six months of employment; and 
  • Is able to continue working the regular pattern of hours as a full time or part time employee without significant changes.  
• Employers must offer casual conversion within 21 days of an eligible employee’s 12 month work anniversary. 
• This is an ongoing obligation, and employers must consider an employee’s eligibility each year to make the offer. 
• If a casual employee requests casual conversion, employers must respond in writing by accepting or rejecting within 21 days. An employer must have reasonable grounds for rejecting a request, or not making a casual conversion offer. 
• Employers must also provide casual employees with the ‘Casual Employment Information Statement’ in addition to the Fair Work Information Statement, at the commencement of employment. 

2. Pay Secrecy Terms – currently in effect 

• The Fair Work Act now gives employees the right to disclose their salary information. 
• It also prohibits employers from entering into a contract (or other written agreement) with an employee which includes a term which prohibits an employee from disclosing their salary or other terms and conditions reasonably necessary to determine an employee’s salary. 
• Any existing employment agreements which do include a pay secrecy term have no effect, and can no longer be enforced. 

3. Prohibiting Workplace Sexual Harassment – effective 6 March 2023 

• The Fair Work Act will prohibit sexual harassment in connection with work. Employers will potentially be made liable for sexual harassment committed by an employee or agent in connection with work, unless they can prove they took all reasonable steps to prevent the sexual harassment. 

4. Flexible Working Arrangements – effective 6 June 2023 

• The amendments allow pregnant employees and employees experiencing domestic violence to request flexible working arrangements. 
• In addition to existing obligations on employers to provide reasons for  refusing an employee’s request for flexible working arrangements, employers may only refuse a request for flexible work arrangements if they have: 

(a) Discussed the request with the employee; (b) Genuinely tried to reach an agreement with the employee about making changes;  (c) Had regard to the consequences of refusal for the employee; and  (d) The refusal is on reasonable business grounds. 

• Employers must also set out the particular business ground that it relies on for refusing the request, and explain how those grounds apply to the request. 
• The Fair Work Commission will now be able to hear and make orders about disputes regarding flexible workplace arrangement requests. 

5. Fixed Term arrangements – effective 6 December 2023 

• The term of a fixed term employment contract must not exceed 2 years (including extensions). 
• Fixed term contracts may not be extended more than once.
• Some fixed term contracts are excluded from this rule, e.g. those relating to casual employees, seasonal labour, specialised skill employment and high-income employees. 
• From 6 December 2023, employers will need to give ‘Fixed Term Contract Information Statement’ prepared by the Fair Work Ombudsman. This has not yet been made available.