May Business & Commercial Newsletter

There have recently been several changes, enacted and currently in Parliament, that make or propose changes to the Fair Work Act 2009 (the Fair Work Act) and the National Employment Standards (NES). These changes will affect both Employment Contracts and HR policies. Briefly:


Pay Secrecy – Changes made to the Fair Work Act in late 2022 mean that employment agreements should no longer include clauses aimed at making employees keep their remuneration and related conditions secret.


Shutdowns – Employers can no longer direct employees (under 78 modern awards) to take annual leave or unpaid leave (if their leave balance is insufficient) during a shutdown period.


Public Holidays – Employers must ask employees if they want to work public holidays, not just roster them on.

For more information see here


Further changes included in a bill currently in Parliament propose:


Parental Leave – Employees will be provided with increased and more flexible access to unpaid parental leave.


Superannuation – a right to superannuation will be inserted into the NES requiring employers to make contributions to their employees’ superannuation fund.


Pay deductions – there will be an expansion to the types of deductions that an employee may authorise their employer to deduct from payments due to them by their employer.


Migrant Workers – the introduction of safeguards for rights of migrant workers working within Australia by ensuring that they are entitled to the benefits under the Fair Work Act regardless of their migration status.


Workplace determinations – once a workplace determination has come into operation, an earlier enterprise agreement will cease to apply.


Coal Mining Industry Long Service Leave – changes regarding calculations of long service leave entitlements for casual mineworkers in the black coal mining industry.


Gender Pay Gaps – employers (with over 100 employees) will now need to report their gender pay gaps to the Workplace Gender Equality Agency (WGEA) and CEOs will also be required to provide their board (or equivalent) with a report setting out how the organisation performs in terms of general pay equality in their relevant industry.


Sexual harassment – any sexual harassment which an employer becomes aware of will now need to be reported to WGEA.


Family Domestic Violence Leave – the definition of FDV has been expanded and employee entitlements to take personal leave as a consequence of FDV (FDV leave) broadened. These changes affect all ‘non-small businesses’ (i.e employers with 15 or more employees) now and will also be extended to ‘small businesses’ as of 1 August 2023. For more information see here.


Employers need to be aware of these changes and ensure that their employment contracts and HR policies are updated to reflect the changes.


Wisewould Mahony’s Employment & Workplace Relations team are happy to answer any queries in relation to these changes and to provide a fixed fee review of employment contracts and policies.


If any of these matters raise issues you would like to discuss, please give us a call on (03) 9629 8333, or email us