1 May 2023 – shutdown periods

From 1 May 2023, many awards implemented new rules relating to employee annual leave during the Christmas shutdown period. Although these changes have been in effect for nearly 6 months, as the Christmas period fast approaches it is a timely opportunity to remind employers of the changes.

The rules confirm:

1. Employers can require employees to take paid annual leave over Christmas however they must provide employees with 28 days written notice of the Christmas shutdown period.
2. Any requirement to take annual leave must be reasonable (i.e. the shutdown period cannot be an unreasonable length of time).
3. If an employee does not have sufficient paid annual leave accrued to cover the whole shutdown period, the employee can agree to either use:

(a) accrued time off

(b) annual leave in advance; or

(c) leave without pay.

If the shutdown period includes public holidays, the employee must be paid for those public holidays if the employee would otherwise work on those days.

These changes only apply to certain awards which can be found on the Fair Work website.[1]

6 June 2023 – flexible work arrangements

The changes enhance the existing rights to request flexible work arrangements by broadening the situations in which an employee can seek flexible arrangements. The change also mandates steps an employer must take when they receives a request for flexible work arrangements.

The Act introduces a dispute resolution mechanism for situations where an employer has denied a flexible work request; or failed to provide a written response to a flexible request within the prescribed time frames; and the parties cannot resolve the dispute through discussions at the workplace level.

1 July 2023 – parental leave

Taking effect on 1 July 2023, employees have greater flexibility when taking unpaid parental leave to align with the Australian Government Paid Parental Leave Scheme. Employees can take up to 100 days of unpaid parental leave at any time within 24 months of the child’s birth or adoption, allowing parents to split the leave across the 24 month period or take it as one continuous period.

6 December 2023 – restrictions on fixed term contracts

On 6 December 2023, new laws came into effect relating to fixed term employment contracts.[2] These changes will apply to all contracts entered into on or after 6 December 2023, with some exceptions.[3]

In a push to increase job security, the new laws:[4]

1. Limit a fixed term contract to a maximum of 2 years (with no option to extend or renew past the 2 year mark);
2. Implement renewal limitations including preventing employers from essentially re-employing the same employee on substantially the same terms; and
3. Require employers to provide a ‘Fixed Term Contract Information Statement’ which contains information about the fixed term contract as well as the new rules that apply.

The exceptions to the new laws are contained in the regulations and do not apply to certain employees including:

1. Specialised skills for a specific task
2. Essential work during seasonal periods
3. High income employees who earn more than the high income threshold (currently $167,500)
4. The position is government funded and the funding provided is for more than 2 years.

There are additional exceptions that apply to certain fixed term contracts entered into on or after 6 December 2023 and before 1 July 2024. [5] These exceptions primarily relate to sports, live performance and higher education fixed term contracts.

Any contract that contravenes these new laws will still be valid except for the end date of the contract. The result being, the employment contract will continue indefinitely.

12 December 2023 – sexual harassment laws

On 12 December 2022, the Sex Discrimination Act was amended to include a positive duty on businesses and companies to take steps to eliminate certain unlawful behaviour including sex discrimination, sexual harassment and certain acts of victimisation in the workplace. [6] This positive duty in some circumstances will extend to conduct by third parties including contractors, customers and clients who act inappropriately towards employees.

To help enforce the changes, effective on 12 December 2023, the Commission has been given new powers and functions to monitor and assess compliance with the positive duty under the Sex Discrimination Act. The Commission will have the ability to assess compliance, conduct inquiries, issue compliance notices and apply to the Federal Court for certain orders in relation to compliance under the Sex Discrimination Act.

30 December 2023 – salary deductions

From 30 December 2023, employees can now direct their employers to make recurring salary deductions for varying amounts provided they are principally for the employee’s benefit. The purpose is to enable an employee to provide one authorisation rather than having to give a new authorisation for deductions each time the amount changes. The ongoing authorisation can be withdrawn by the employee at any time.

1 January 2024 – superannuation

The right to superannuation contributions will be included in the National Employment Standards from 1 January 2024. Although compliance will still be the ATO’s responsibility, once they are enshrined under the NES, employees can enforce this under the Fair Work Act.

If you would like advice on how these new and upcoming changes may affect you or your business, please contact commercial Partner, Antony Harrison or Senior Lawyer, Sabrina Austin.

[1] https://www.fairwork.gov.au/newsroom/news/new-shutdown-rules-for-awards.

[2] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).

[3] Fair Work Amendment (Fixed Term Contracts) Regulations 2023 (Cth).

[4] https://www.fairwork.gov.au/starting-employment/types-of-employees/fixed-term-contract-employees.

[5] https://www.fairwork.gov.au/starting-employment/types-of-employees/fixed-term-contract-employees/additional-fixed-term-contract-exceptions.

[6] Sex Discrimination Act 1984 (Cth) and Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth).

Written by Sabrina Austin

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