Navigating Changes to the Fair Work Act

Changes to industrial relations laws 2022

The Engaged Space Industrial Relations Update December 2022

New laws as a result of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act are the most significant change to Australia’s industrial relations system since the commencement of the Fair Work Act 2009 (Cth). Underpinning this, the Fair Work Act has new objectives that need to be considered when interpreting and applying the Act. This means that the Commission needs to take these objectives into account when performing its functions or exercising its powers.

  • Promoting job security
  • Promoting gender equality

The objectives relative to Modern Awards have also changed to include:

  • The need to improve access to secure work across the economy
  • The need to achieve gender equality in workplaces

As a result of this, how the Commission manages minimum wages across different industries and other key decisions will flow as a result of these underpinning objectives.

In summary, changes include:

  • Prohibiting pay secrecy
  • Expansion as to who can apply for flexible work and the process for an employer to refuse
  • Limiting the use of fixed-term contracts
  • Penalties for placing job ads that contravene the Fair Work Act
  • Additional protected attributes at work to prevent discrimination
  • Obligations on businesses to prevent workplace sexual harassment
  • Amendments to the process of responding to extending unpaid parental leave
  • A raft of changes to enterprise agreements and enterprise bargaining

Critical Points for Employers

Prohibiting Pay Secrecy 

If your employment agreement templates provided to new starters contain provisions restraining employees from discussing their pay or their employment terms and conditions, you must remove those clauses immediately. The new rights to discuss pay and conditions (should an employee choose) came into effect on 7 December 2022 and apply to new employees who commence employment after this date and to any existing employee, who subsequently has a change in contract after this date.

Flexible Work

From 6 June 2023, more employees can request flexible working arrangements, including employees, or members of their immediate family or household, experiencing family and domestic violence and employees who are pregnant. 

Employers will have new obligations before they can refuse a request from an employee for a flexible working arrangement, which require the employer to genuinely consider the request, with the Commission able to hear and make orders about disputes relating to flexible working arrangement requests.

Fixed Term Contracts

From 6 December 2023, employers can no longer employ an employee (with a few exceptions) on a fixed-term contract that:

  • Is for 2 or more years (including extensions)
  • May be extended more than once, or 
  • Is a new contract
    • that is for the same or a substantially similar role as previous contracts
    • with substantial continuity of the employment relationship between the end of the previous contract and the new contract, and either:
      • the total period of the contracts is 2 or more years,
      • the new contract can be renewed or extended, or
      • a previous contract was extended.

Employers will not be able to take certain actions to avoid the new restriction when it comes into effect and from the commencement date employers will be required to provide a Fixed Term Contract Information Sheet

Job Ads

From 7 January 2023, job advertisements can’t include pay rates that would breach the Fair Work Act, or a fair work instrument (eg an Award or Enterprise Agreement). Employers will now face fines for breaching these provisions, with the Commission able to start court proceedings for alleged breaches.


From December 2022, there are new protected attributes at work:

  • Breastfeeding
  • Gender identity
  • Intersex status

This means employers are prohibited from taking adverse action against current or future employees because of these attributes from this date.

Prohibiting Workplace Sexual Harassment

From 6 March 2023, the Fair Work Act will prohibit sexual harassment in connection with work, which includes in the workplace. The protection won’t apply to sexual harassment of an employee that starts before 6 March 2023. The proposed changes will put obligations on employers to be proactive in preventing sexual harassment in the workplace. A person or company can be liable for sexual harassment committed by an employee or agent in connection with work unless they can prove that they took all reasonable steps to prevent the sexual harassment.

Unpaid Parental Leave Changes

There are amendments to the process of how employers need to respond to requests for extending unpaid parental leave. These new requirements apply to requests for an extension of unpaid parental leave made from 6 June 2023.

Enterprise Agreements and Enterprise Bargaining

A variety of changes have been made to the bargaining framework that includes multi-enterprise (now renamed Cooperative Workplaces Bargaining), Single Enterprise Bargaining, and low-paid multi-employer bargaining (now renamed Supported Bargaining), that aim to make bargaining more accessible and attractive for both employees and employers. Changes include simplifying enterprise agreement approval requirements, including the Better-Off-Overall-Test, and empowering the Fair Work Commission to assist with bargaining disputes and reach agreements.

For further information contact us at The Engaged Space for assistance with reviewing, drafting, and implementing your workplace policies and employment agreements.

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