Navigating the recent and upcoming Fair Work Legislation changes

October 12th, 2023

Changes to the Fair Work Act will have considerable implications for wine industry employers. Ilga Horvat and Linda Blackett, from Boutique HR Consulting, provide insights into how business operators will be affected and how to respond and prepare accordingly.

Whether you have your own winery, vineyard or work in a wine-related role you will be affected by the recent changes to the Fair Work Act. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (SJBP Act) has staggered amendments and changes to a range of workplace laws. Navigating these can seem overwhelming when there are so many other considerations important to the day-to-day running of your business. However, if you manage people, there are some important changes you need to consider and perhaps do differently.

In this article, we will break down some of the main ones for you to review and the timing to action.

Pay secrecy, job ads, and flexible work

The following changes have taken effect already and coming into vintage or peak trading when you may increase your staffing, they are important to note.

Pay secrecy: From 7 December 2022 pay secrecy clauses no longer apply. Employees can freely discuss their pay and employment terms with others even if they have signed a contract that notes otherwise. From 7 June employment contracts can no longer include pay secrecy terms and employers who include them can face penalties.

Tip: Review your existing contracts and for any new team members, remove this clause. Be mindful of how you remunerate your team as people do talk. If you have a system where you have set accountabilities that are rewarded accordingly or open communication regarding performance and reward, then you shouldn’t have any issues.

If you don’t, you could have some disgruntled team members whose attention is on their employment conditions and taken away from what they were employed to do.

Job ads: From 7 Jan 2023 job advertisements cannot note pay that is lower than minimum entitlements. Now this may seem obvious, however, in this industry where piecework and period pay may apply, you could be in breach without realising it and have fines imposed.

Tip: If you are advertising a piecework style role where a periodic rate of pay applies, for example a rate of pay for the amount that is picked or pruned hourly or weekly, note this in the ad and include the rate of pay. These rates must not be lower than the award or industrial agreement applicable. See the end of this article on how to access an ad template for you to use as a guide.

Flexible work arrangements: A flexible work arrangement is where hours, place or pattern of work may be altered to suit an employee’s personal circumstance. From 6 June 2023 employers must consider requests from employees wanting flexible work. The list of staff eligible to request this has been extended to pregnant employees and employees or members of the employee’s immediate family or household who experience domestic violence. In summary, eligible workers already included employees who:

Are 55 or older
Are a carer
Are a parent or have responsibility for a child
Have a disability
Are experiencing or providing support to an immediate family or household member experiencing family and domestic violence
Are pregnant
If casual, have been working regularly with the employer for 12+ months or have a reasonable expectation of continued regular work.

This does not mean that an employer has to agree to a request, but they do need to show that they have considered it. This means having a conversation, consider how refusal will impact the employee, genuinely look for ways to accommodate the request and respond to the request in writing within 21 days.

The Fair Work guidelines note that employers can refuse a request based on reasonable business reasons, for example; the arrangements are too costly or will result in a significant loss in efficiency or productivity or negatively impact customers.

Tip: If you receive a request from a staff member, be reasonable in your request and consideration to approve or deny. Ensure you have a conversation and discuss various options including considering the reasons for the request and the impact on both parties. Consultation is key and ensure you document the request and response.

Fixed-term contracts: To improve job security the SJBP Act has limited the use of fixed-term contracts. This change is anticipated to take effect from 6 December 2023 unless an earlier date is set in the coming months.

To quote the Fair Work Ombudsman, from this date “employers can no longer employ an employee on a fixed term contract that”:

is for 2 or more years (including extensions)

may be extended more than once, or

is a new contract:

that is for the same or a substantially similar role as previous contracts

with substantial continuity of the employment relationship between the end of the previous contract and the new contract, and either:

the total period of the contracts is 2 or more years,

the new contract can be renewed or extended, or

a previous contract was extended.

Employers must not take certain actions to avoid the new restrictions from applying. For example, they cannot:

delay re-engaging an employee for a period

re-engage the employee and engage someone else instead to do the same or substantially similar role.

How could this affect you?

Any employees that are on a fixed-term contract that breaches the new provisions will be considered a permanent employee regardless of the contract expiry date. This means the employee will gain access to entitlements such as termination and redundancy payments and access to unfair dismissal proceedings.

There are exceptions to allow some fixed-term contracts when genuinely necessary; for example in the case of apprentices or trainees, those undertaking essential work during a peak period or fixed period such as harvest or in replacing an employee on a long leave period. If they earn above the high income threshold they are also exempt.

These changes only apply to contracts that start after the legislation takes effect. However, any contract in place prior will be counted towards the set limits on number and length of contract.

Tip: Review any current or upcoming fixed-term contracts for recurrence, length and requirement and in turn, validity. Consider transitioning any long-term contract holders to permanent positions or reviewing roles to redefine duties. Ensure you provide any new fixed-term contract employees with a “Fixed Term Contract Information Statement”.

Gender equality

Anti-discrimination: Anti-discrimination legislation has existed for a while with strict guidelines on treating all people equally no matter their age, sex, race, sexual orientation, family or carer responsibilities, religion, pregnancy, etc. Employers are prohibited from taking any adverse action against their staff due to any of these (as well as other specified attributes). What does this mean exactly? It means that an employer may face penalties if they threaten or treat an employee or prospective employee in a way which causes an employment disadvantage based on these attributes.

From the 7 December 2022 this list has been expanded to include breastfeeding, gender identity and intersex status.

Tip: Ensure that your recruitment process is standardised and selection is based on skills and capabilities not on arbitrary factors. Ensure you have a clear anti-discrimination and anti-bullying policy that all employees are aware of. Training in this area is increasingly important and will ensure from the start you instil a culture of fairness and respect. This could mean as part of your staff onboarding, a simple training video or an interactive session outlining what behaviours are and are not acceptable in the workplace.

Bullying: Bullying is also part of the updated discrimination legislation. It highlights the Fair Work Commission (FWC) has an active role in stopping bullying. Bullying occurs when a person or group of people repeatedly behave disrespectfully or unreasonably towards others in the workplace and/or cause risk to their health and safety (physical and mental).

Workplace laws actively prohibit bullying as does Work Health and Safety legislation. This has also recently been updated to ensure a reduction of psychosocial hazards in the workplace. Employers have a duty of care to protect their staff from physical and psychological hazards. A failure to do so may incur penalties. The extent of these is governed by state legislation.

Sexual harassment in the workplace: From the 6 March 2023 the Fair Work Act has been updated to prohibit sexual harassment in connection with work. From this date, a person who experiences sexual harassment in connection with their workplace (including a representative association of the workplace) can take civil proceedings if their dispute cannot be resolved by the FWC.

The new legislation highlights that the employer is liable for the behaviour of any employees or agents in connection with the workplace unless they can prove they took all reasonable steps to prevent sexual harassment from occurring at work. This change has been widely covered in the media and in turn, there is little excuse for an employer to not do all they can to prevent such behaviour.

Tip: Update and recirculate your sexual harassment and bullying policy. Ensure as part of onboarding your staff that you include this topic highlighting what sexual harassment is and what behaviours constitute bullying. Note that this type of behaviour is unacceptable and what an employee should do if they experience this. This should follow from your anti-discrimination training and policies but should also be highlighted separately to ensure due focus.

Include it with your on-site safety induction briefing for all contractors to ensure that everyone connected to your workplace is fully briefed about safety and guidelines for expected respectful and acceptable behaviour.

This does not require elaborate and day-long training sessions. It can be straightforward. I have included some helpful links to get you started if you do not have anything in place.

Unpaid parental leave changes: From 6 June 2023 employees can request to extend their parental leave with a requirement for employers to respond to these. Similar to flexible work request updates, employers need to discuss and consider the request and only refuse on reasonable business grounds. The employer is to try to reach an agreement about the extension with the employee and consider the consequences of the refusal. A written response is required noting the reasons for refusal and include reference to the FWC dispute resolution provisions.

Tip: Be mindful of these changes and ensure you openly consult with your employees and consider all options before responding to the requests. Open dialogue is the key. Respond within 21 days.

The FWC has been open to note they have a directive to ensure when reviewing any cases brought before them they safeguard job security and gender equality. This is also the case when reviewing terms and conditions set by awards. At the risk of sounding repetitive, it is important to highlight that as an employer you also need to consider these aspects in your employment practices.

There are more changes concerning enterprise agreements and bargaining laws and a few others. The full list can be accessed on our website:

www.boutiquehr.com.au

Here you can access and download fact sheets covering the changes detailed as well as a handy timeline and checklist. We have also added templates for ads.

We will be covering practical people management topics in future issues of Grapegrower & Winemaker. If there is something in particular that interests you, please let us know at hello@boutiquehr.com.au or email the editor of this publication.

This article was originally published in the October issue of the Australian & New Zealand Grapegrower & Winemaker. To find out more about our monthly magazine, or to subscribe, click here!

To view the current issue of the Grapegrower & Winemaker, visit our Current Issue page.