The Albanese government’s first workplace reform bill has been passed by the parliament, with measures around equal remuneration, pay secrecy and flexible working that should help to narrow Australia’s gender wealth gap. We focus on a few key areas of the changes under the new Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 below.
The gender wealth gap has been quantified in WTW’s 2022 Global Gender Wealth Equity Report which found significant pay gaps and delayed career trajectories for women relative to their male counterparts with similar skills and experience, both in Australia and a number of countries globally. These factors, combined with family responsibilities, and differences in financial literacy, lead to striking expected wealth gaps at retirement, for women relative to men. The new law is expected to assist women in achieving greater equity through several mechanisms including:
The changes require the Fair Work Commission (FWC), when considering a determination varying modern award minimum wages, to ensure that its consideration of work value is free of assumptions based on gender. It must also consider whether historically, the work being assessed has been undervalued because of such assumptions. The FWC can now make equal remuneration orders on its own initiative rather than only on application by certain parties. There is also new guidance on gender equity considerations that the FWC may take into account when considering whether there is equal remuneration for work of equal or comparable value.
The changes apply to amendments to modern awards being considered by the FWC after the Bill received Royal Assent – which occurred on 6 December 2022.
There are three components to the changes in this area:
The changes will commence on 7 June 2023 – six months after the Bill received Royal Assent.
In a related change, regulations made on 13 December 2022 will prohibit employers from including certain information on payslips relating to family and domestic violence leave, recognising that such information could present a danger to the employee taking the leave. The information that will be prohibited includes any statement that a period of family and domestic violence leave has been taken or that an amount paid to the employee includes a payment in respect of family and domestic violence leave, and any statement of the balance of an employee’s family and domestic violence leave. These changes will commence on 1 February 2023.
The anti-discrimination provisions of the Fair Work Act have been amended to include three further protected attributes – breastfeeding, gender identity and intersex status. Enterprise agreements will also be able to include what are described as “special measures to achieve equality”, and it has been clarified in the Act that such measures will not be unlawful terms in enterprise agreements.
Generally, these changes commenced on 7 December 2022
The Fair Work Act has been amended to prohibit sexual harassment in connection with work. The prohibition applies broadly to protect workers, prospective workers and persons conducting businesses or undertakings. Principals may, in some circumstances, also be vicariously liable for acts of their employees or agents. The prohibition will be supported by a new dispute resolution framework, and the FWC will be able to make stop sexual harassment orders to protect applicants from future harm (replacing the existing provisions in this area). Existing state and territory anti-discrimination laws and, to the extent they deal with sexual harassment, occupational health and safety laws will continue to apply concurrently.
These changes generally commence on 7 March 2023 – three months after the Bill received Royal Assent.
A new workplace right has been created in the Fair Work Act allowing employees to ask one another about and to disclose their remuneration and relevant conditions that are needed to determine their remuneration outcome – such as the number of hours worked – although an employee can choose to refuse to disclose the information. Employees can use the information to assess whether their remuneration is fair and comparable to that of other employees in the same workplace or industry. Employees can also choose to disclose their past remuneration even if they are no longer employed by the same employer.
In addition, employers are now prevented from enforcing pay secrecy clauses in employment contracts and fair work instruments, and from including pay secrecy clauses in new employment contracts and other written agreements. Employees, prospective employees, employee organisations and inspectors can bring an action against an employer for including prohibited clauses in a new agreement or contract, with penalties of up to 60 penalty units ($66,600 for a corporation based on the current value of a penalty unit), or 600 penalty units for serious contraventions ($666,000).
The changes commenced on 7 December 2022. Employers should now review any template employment contracts to ensure they comply with the new requirements.
The information in this document is general information only and does not take into account your objectives, financial situation or needs. It is not personal or legal advice. You should consider obtaining professional advice about your particular circumstances before making any financial decisions based on the information in this document.
This article is an update of a previous post published on November 24
