4 min read

New civil liability under Secure Jobs, Better Pay

If the amendments to the Fair Work Act 2009 (Cth) proposed by the Secure Job, Better Pay Bill 2022 come into force later this year, employers will face new civil remedy provisions. If contravened, the employer will be liable to remedial orders and the imposition of a fine.

The table below outlines the new provisions:

Contravention Explanation
Non-compliance with flexible work arrangement provisions (s 44) An employer will breach this provision when 21 days have lapsed since the employee made a request for flexible work arrangements and the employer has not responded to the request in writing. When this period has lapsed it will be taken that the request has been refused.

If refusing the request, the employer will breach this provision by not providing reasonable business grounds for doing so, i.e. cost, capacity, practicality, inefficiency or impact.
Non-compliance with a term of a Fair Work Commission order made under new subsection 65C(1) (s 65C(6)) The Fair Work Commission (FWC) may make orders in relation to a request for a flexible work arrangement with which the employer must comply.

The employer may be required to give to the employee details, or further details, of reasons for refusing request.

The employer may need to provide any alternative working arrangements to accommodate the employee’s circumstances as well as other specified changes the FWC deems appropriate.

The FWC may grant the employee’s request and the employer must comply with that order.
Non-compliance with a guarantee of termination entitlements (s 226A) When an enterprise agreement has been terminated, an employer will breach this provision if it does not give the employee the entitlements that they would have received if the enterprise agreement was still in operation.

If an employee’s employment is terminated because of a redundancy, or business insolvency or bankruptcy, the employer must give the employee their entitlements under the (terminated) enterprise agreement that relate to their employment termination and are more beneficial than the entitlements under a modern award that would otherwise apply at the time (except if the employee was an award/agreement-free employee immediately before employment termination).
Non-compliance with prohibition on pay secrecy terms (s 333D) Contravention will occur when employment contracts include a pay secrecy clause or a term that is inconsistent with the employee’s workplace rights to discuss remuneration and employment conditions.

Example of a contravening pay secrecy clause:
You must treat all confidential information relating to our business with strict confidentiality. In particular, the terms and conditions of your employment (including remuneration arrangements) are strictly confidential. It is a condition of your employment that you do not discuss these matters with any other person other than your legal or financial advisers or immediate family members.
Non-compliance with limitations on fixed-term contracts (s 333E(1)) This applies to contracts containing a term that ends the employment after a certain period (this does not apply to casual employment contracts but does apply to where there is a gap in employment).

The provision will be contravened if the employer enters into a contract with the employee:
– for a period longer than 2 years;
– where the period could be extended or renewed for a period exceeding 2 years; or
– where the contract could be extended or renewed more than once.

Exceptions apply where the:
– employee has specialised skills for specified task;
– employee is engaged in training arrangements;
– employer needs additional workers to do essential, seasonal work;
– employer needs additional staff during an emergency, periods of absent employees;
– employee earns over the high-income threshold for the first year of the contract;
– employer is reliant on government funding to finance the position;
– employee is appointed under governance rules;
– employer is permitted to enter into a fixed-term contract under a modern award; or
– contract is prescribed by Fair Work Regulations for which as exception applies.
Failure to provide a Fixed Term Contract Information Statement (s 333K) An employer will breach this provision by not providing the statement to the employee.
The statement is being prepared and published by the Fair Work Ombudsman in the Government Gazette, and will contain information about the prohibition of fixed employment contracts and dispute resolution.
Non-compliance with prohibition on sexual harassment in connection with work (s 527D) A person will contravene this section if a person sexually harasses another person who is:
– a worker in a business or undertaking;
– seeking to become a worker in a business or undertaking; or
– a person conducting a business or undertaking.
This extends to third parties such as clients and customers, for example, where a worker harasses a customer.
Non-compliance with a stop sexual harassment order (s 527K) The FWC may make orders requiring:
– the person or persons to stop the specified behaviour;
– compliance with, or development of, a sexual harassment policy; and
– the provision of information, and additional support and training, to workers in relation to sexual harassment.
Contravention of a compensation order in an arbitrated sexual harassment dispute (s 527S(4)) The FWC may deal with a sexual harassment dispute and make compensation orders in favour of the employee. The employer will breach this provision if it does not satisfy the order from the FWC.
Advertising employment with a rate of pay that contravenes the FW Act (s 536AA(1)) An employer will contravene this provision if, for example, it advertises a job with a specified rate of pay below the applicable modern award rate and the rate of pay did not remain compliant for the duration of the advertising (e.g. while the job ad remained ‘live’).

Before advertising for a position, employers should ensure that the rate of pay and other workplace conditions offered comply with the FW Act or the applicable modern award and enterprise agreements.
Advertising piecework without including periodic rate of pay (s 536AA(2)) If an employer is advertising and offering employment as a pieceworker, and the worker would also be entitled to a periodic rate of pay, the advertisement must specify that rate of pay (or a higher rate of pay) or include a statement to the effect that a periodic rate of pay is payable for the employment.

For example, a compliant job ad could state:
‘Fruit picker wanted, $x/kg’, minimum hourly rate $25/hr’; or
‘Fruit picker wanted, competitive piece rates, min $25/hr’; or
‘Fruit picker wanted, competitive piece rates, min hourly rates apply’.

The maximum penalty for contravention of these provisions will be $82,500 on and from 1 January 2023. If the employer is an individual, the maximum penalty will be $16,500. In cases of serious contravention, the maximum penalty will be increased by 1000%. A contravention of a provision by a person is a serious contravention if:

  • the person knowingly contravened the provision; and
  • the person’s conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.
The Workplace Bulletin

Get the latest employment law news, legal updates, case law and practical advice from our experts sent straight to your inbox every week.

Sending confirmation email...
Great! Now check your inbox and click the link to confirm your subscription.
Please enter a valid email address!