The Albanese Government has hit the ground running, making changes to the Fair Work Act and other industrial laws in late 2022, with many of the changes scheduled to come into effect on a staggered basis. This article looks at three of those changes.

The issues that are dealt with are important changes to how employers may have advertised in the past (and into the future) and make job offers to employees with secrecy terms.

A. Job advertisements

Many employers will post a job ad with a rate of pay included to be attractive or entice potential employees. Sometimes, the rate may not meet minimum conditions of employment, but there has been no penalty for that.

From January 7, 2023, job advertisements cannot include rates of pay that would breach:

• the Fair Work Act, or

• a fair work instrument (such as an award or enterprise agreement).

This means that job ads can’t include pay rates that undercut employees’ minimum entitlements. Any nominated pay rate must be in line with, or in excess of, the minimum award or agreement rate that applies to the role.

These requirements apply from January 7, 2023, regardless of when the ad was originally posted. This means that, even if the ad was posted in 2022, the requirement applies to that ad from January 7, 2023. The Fair Work Ombudsman has the power to start court proceedings for alleged breaches of these provisions.

Employers face fines for breaching these provisions unless they have a reasonable excuse for not complying.

B. Sharing pay and workplace conditions information

Some employers in the past have prohibited or forbidden employees from discussing their pay or salaries with other employees. This was generally on the basis of stopping employees becoming disgruntled if the same job was being done but employees received different rates due to skill, experience, or other valid reasons.

Employees, and future employees, have the right to:

• share (or not share) information about:

o their pay

o their employment terms and conditions that would be needed to work out their pay, such as their hours of work

• ask other employees (with the same or a different employer) about:

o their pay

o their employment terms and conditions that would be needed to work out their pay, such as their hours of work.

Employees can’t be forced to give this information to another employee if they don’t want to. Employees can also exercise these rights even after they leave their employment. That means that confidentiality cannot be applied to these terms of employment.

Employers can’t take adverse action against an existing or future employee:

• because of these rights, or

• to prevent an existing or future employee from exercising these rights.

These workplace rights apply to employees with:

• employment contracts that were entered into on or after December 7, 2022, or

• employment contracts entered into before December 7, 2022 where the contract doesn’t include pay secrecy terms that are inconsistent with these rights.

Where a contract entered into before December 7, 2022 has pay secrecy terms that are inconsistent with these rights, and the contract is changed after December 7, 2022, these rights apply after the contract is changed.

Banning pay secrecy terms

Pay secrecy terms are terms in employment contracts, awards, or agreements that are inconsistent with the workplace rights described above. From different start dates, these terms will be banned from being included in:

• new employment contracts and other written agreements;

• existing employment contracts;

• new or existing fair work instruments such as awards or agreements.

To help work out if you have pay secrecy terms in an instrument that covers your business, check any of the below:

• any applicable awards;

• any applicable agreements; and

• any employment contracts.

New employment contracts and other written agreements

If a new employment contract entered into on or after December 7, 2022 has pay secrecy terms in it, those terms have no effect and can’t be enforced.

From June 7, 2023, pay secrecy terms can’t be included in employment contracts or other written agreements. Employers who enter into employment contracts or agreements that have pay secrecy terms could face penalties.

Existing employment contracts

Pay secrecy terms in employment contracts entered into before December  7, 2022 will continue to operate until those contracts are varied. Where this happens, these terms will no longer have effect and can’t be enforced.

New or existing fair work instruments (awards and agreements)

Fair work instruments are legal workplace documents such as awards or enterprise agreements. They are separate from employment contracts or workplace policies.

Pay secrecy terms in a fair work instrument have no effect and cannot be enforced after December 7, 2022. This applies regardless of whether the instrument was made before, on, or after this date.

FWO powers

The Fair Work Ombudsman has the power to start court proceedings for alleged breaches of these rules. So, please review your documents to ensure that the job ads that are posted and contracts you issue comply with the new laws.