Employment lawyer discusses pay secrecy, gender pay requirements with Fair Work legislation
Employers have until June 6, 2023, to ensure that they are compliant with the new legislative changes with regards to the Fair Work laws in Australia.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill received royal assent on 6 December 2022. The act amends workplace relations laws relating to bargaining, job security, gender equality, compliance and enforcement, workplace conditions and protections and workplace relations institutions.
However, some changes don’t come into effect until the middle of the year, giving employers time to review their current employment contracts.
“For employers without enterprise agreements, the impact will likely be around the periphery of their workforce,” Alicia Mataere, partner within Holman Webb Lawyers’ Workplace Relations Group, said.
“For example, in relation to pay secrecy clauses, fixed or maximum duration contracts, procedures and obligations for dealing with requests for flexible work and extensions to unpaid parental leave; some of which don’t take effect until 6 June 2023.”
There has been a mixed reception to the new legislative changes, which were rushed through Parliament and only passed with the help of independent Senators. Many businesses are sceptical of the changes and believe it will hamper industries, while unions are generally supportive, believing workers will get a fairer outcome.
Gender pay gap
One key issue is trying to address the gender pay gap but that may take some industries years to sort out given their long history of imbalance.
“To be frank, the impact — if any — will take some time to be seen,” Mataere said.
“Whilst the objects of the act have been specifically amended to require a consideration of gender equality, with both the male comparator removed in Equal Remuneration Orders and pay secrecy clauses outlawed, the capacity to ask a male co-worker what their salary is doesn’t equate to a right to have them answer the question — or to answer it truthfully.
“Additionally, whilst the removal of the male comparator is a substantial improvement, the difficulty in increasing pay within female-dominated industries remains.”
Another issue is the cultural shift required. In male-dominated industries, it is more about understanding and changing the psyche than anything else, according to Mataere.
“Changes to the way that requests for flexible work and extensions to unpaid parental leave are handled may have a positive impact on balancing the gender pay gap where both men and women utilise the right,” she said. “However, this cultural and societal shift will require more than legislative amendments to Australia’s workplace relations laws.
Overall, the changes are a start, however there is no one thing that will bridge the gap, Mataere said.
“One might argue that the positive duties imposed on employers by the amendments to the Sex Discrimination Act last year may have a greater impact in balancing the gender pay gap, given the obligation to take reasonable and proportionate measures to eliminate unlawful sex discrimination.”
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill is now in play and employers need to act quickly to ensure they are fully coherent with the new laws.
The changes also expand the concept of multi-enterprise bargaining, “meaning that more employees will be covered by enterprise agreements and many businesses will likely be forced to bargain together, potentially even with competitors,” said another employment lawyer talking to HRD.
How HR should respond
According to Mataere, employers need to ensure that:
- contracts don’t have pay secrecy clauses, including variations to existing contracts
- fixed-term or maximum duration contracts are reviewed in light of the limited use
- they review policies relating to parental leave and requests for flexible work arrangements to ensure compliance with the amendments
- their current industrial relations strategy regarding workplace bargaining effectively accounts for the substantial changes introduced by the amendments to the act (this is particularly relevant for employers with older agreements)
- they are actively taking steps to prevent sexual harassment in the workplace, as the Fair Work Commission will have more capacity to deal with complaints
