Important Updates to Australian Employment Law
Australia’s employment law is ever changing with minor and major updates each year. There have been some changes that affect all industries. It is important for employers to stay up to date with these changes to ensure employment agreements are current and enforceable.
An overview of Employment Law
Employment law is a collection of regulations and legislation that governs the relationship between you and your employees. In Australia, the main sources of employment law are:
legislation;
the common law; and
industrial instruments.
The Fair Work Act 2009 (Cth) (FWA) is an important piece of this broad area of legislation, providing the National Employment Standards (NES) of 11 minimum entitlements that apply to most Australian employees.
Public Holidays
The recent Federal Court decision of Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 is a significant interpretation of the FWA that is important for all employers to understand to avoid contravention and potential penalties.
The effect of this decision requires an employer to give an employee the choice to work a nationally recognised public holiday. The employee may refuse the work on the nationally recognised public holiday if the request was not reasonable or the refusal by the employee is reasonable.
The Court held that “request” should be given its ordinary meaning and therefore an employer’s request to an employee must not be a requirement. In essence, an employer can request an employee work a public holiday but cannot require it. This is a significant difference that narrows the interpretation of section 114 of the FWA and affects most employers and employees in Australia.
This will affect all employers in Australia who must:
request employees work on a public holiday and that the request is phrased as a request;
ensure that the request is reasonable which includes consideration of:
the ongoing business operations;
the personal and family considerations for the employee;
whether penalty or overtime rates are payable for working on the public holiday;
the nature of the employee’s employment (full-time, part-time or casual); and
the amount of notice which is being provided.
It will not be sufficient that a term of an employment agreement provides for the employee to work on public holidays.
Updates to Pay Secrecy Terms
In December 2022, updates to the FWA were enacted to provide employees with the right to share information regarding their pay and employment terms and conditions including with respect to their pay and hours of work. Importantly, employees also have the right to ask other employees about the same but this does not mean that an employee must share this information if they don’t want to.
These rights apply to employees who entered employment contracts on or after 7 December 2022, or prior to 7 December 2022 where any payment secrecy terms included in the employment agreement are not inconsistent with these rights.
Pay secrecy terms will soon be banned from being included in existing employment contracts, new employment agreements and written agreements, and new or existing fair work instruments and any employment agreement which contains such a clause, that clause will be of no effect.
As a result of the updates to the FWA and Pay Secrecy requirements, it is important for all employers to review and potentially update their existing employment documents to ensure the current law is being complied with and obligations are being met.
Get in touch with Merton Lawyers today for a quote to review and update your relevant company documents.
