The Fair Work Act 2009 (Cth) is one of Australia’s most significant employment laws. As workplaces continue to evolve, the legislation has become increasingly complex for employers and employees alike.
On 6 December 2022, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) was enacted, introducing sweeping changes to Australia’s industrial relations framework. These reforms are being progressively rolled out throughout 2023 and have major implications for businesses across all industries.
In this article, our workplace lawyers, explain the key Fair Work amendments, what they mean for employers and employees, and how to stay compliant.
For up-to-date changes, read our latest article on 2025 changes to the Fair Work Act.
Key Takeaways
Pay secrecy clauses are now unlawful, and employees have a protected right to discuss remuneration.
Rolling and long-term fixed-term contracts are largely banned, forcing many employers to move to permanent employment arrangements.
Employers must genuinely consult with employees before refusing flexible work or unpaid parental leave requests.
Sexual harassment and discrimination protections have expanded, increasing employer compliance obligations.
Enterprise bargaining rules have been simplified, while multi-employer bargaining options have significantly expanded.
Overview: Secure Jobs, Better Pay Reforms
The amendments introduce significant changes to the Fair Work Act 2009 (Cth), including:
A crackdown on fixed-term and rolling fixed-term contracts
A ban on pay secrecy clauses
Expanded flexible work and unpaid parental leave rights
Enhanced anti-discrimination and sexual harassment protections
Major changes to enterprise bargaining and multi-employer agreements
Each reform is explained in detail below.
Pay Secrecy Clauses
What are pay secrecy clauses?
Pay secrecy clauses are contractual terms that prevent employees from discussing their salary or remuneration with colleagues. Historically, these clauses were commonly used to limit pay transparency within workplaces.
What has changed?
Pay secrecy clauses are now unlawful. Employees have a protected workplace right to ask other employees about their pay and to disclose their own remuneration if they choose to do so.
Impact on employers
Employers can no longer include pay secrecy clauses in employment contracts, policies, or other workplace documents. Any existing clauses are unenforceable. Businesses should review their employment contracts with a workplace lawyer to ensure compliance and may also wish to assess whether pay disparities exist within their workforce, particularly in relation to gender pay equity.
Impact on employees
Employees are legally entitled to discuss their pay, although they cannot be compelled to disclose their remuneration if they prefer not to. These rights continue to apply even after employment has ended.
Commencement dates
For contracts entered into before 7 December 2022, pay secrecy clauses remain in the document but are unenforceable if the contract is amended. For contracts entered into on or after 7 December 2022, pay secrecy clauses have no legal effect. From 7 June 2023, pay secrecy terms are formally banned and civil penalties apply for breaches.
Flexible Work Requests
Who can request flexible work?
Employees with at least 12 months’ service may request flexible working arrangements if they meet certain criteria, including being a parent or carer, having a disability, being aged 55 or over, being pregnant, or experiencing family or domestic violence.
What has changed?
Employers are now required to genuinely consult with employees who make flexible work requests. This includes meeting with the employee, considering the impact of any refusal on their circumstances, providing detailed written reasons if the request is refused, and proposing alternative arrangements where possible.
Impact on employers and employees
While employers may still refuse requests on reasonable business grounds, they must now follow a more rigorous consultation process. Employees can refer disputes about flexible work requests to the Fair Work Commission, and eligibility has expanded to include pregnant employees and those experiencing domestic violence.
Unpaid Parental Leave Extensions
What has changed?
If an employee requests an extension of unpaid parental leave and the employer intends to refuse, the employer must now respond in writing within 21 days. The refusal must be based on reasonable business grounds, follow genuine consultation, and consider the impact on the employee. Employers must also specify whether an alternative extension period would be acceptable.
Impact
These changes place stricter procedural obligations on employers and strengthen employee rights to extended unpaid parental leave beyond 12 months unless refusal is properly justified.
Commencement date: 6 June 2023
Fixed-Term Employment Contracts
What is the amendment?
Employers are now prohibited from using fixed-term contracts that exceed two years in duration, extend beyond two years through renewals, or contain options for renewal more than once. This effectively ends the widespread use of rolling fixed-term contracts.
Certain exceptions apply, including for specialist project work, traineeships, peak demand periods, emergency cover, high-income earners, and some government-funded roles.
Impact
Many employers will need to transition long-term fixed-term employees to permanent employment. Employees offered fixed-term contracts after the amendments commence should ensure those arrangements are lawful.
Expanded Anti-Discrimination Protections
What has changed?
The Fair Work Act now protects additional attributes, including breastfeeding, gender identity and intersex status.
Impact
Employers must not take adverse action based on these attributes. Employees who experience discrimination may make a complaint to the Fair Work Commission, and the Fair Work Ombudsman now has authority to commence court proceedings for breaches.
Sexual Harassment Protections
What has changed?
The legislation introduces a broad prohibition on sexual harassment in connection with work. This applies to employees, contractors, trainees, apprentices and volunteers.
Impact
Employers may be held vicariously liable unless they can demonstrate they took reasonable steps to prevent sexual harassment, such as implementing policies, training staff and establishing reporting mechanisms. Employees may seek compensation and penalties through the Fair Work Commission.
Commencement date: 7 January 2023
Enterprise Agreement Reforms
Termination after expiry
The Fair Work Commission must now terminate enterprise agreements in specific circumstances, including where the agreement is unfair to employees, no longer covers employees, or poses a genuine threat to business viability (subject to safeguards).
Zombie agreements
Enterprise agreements made before the Fair Work Act will automatically terminate on 7 December 2023 unless an extension is granted. Employers relying on these agreements will need to transition to modern awards or new enterprise agreements.
Errors and corrections
The Commission now has expanded powers to correct errors in enterprise agreements and validate approvals where the incorrect version was submitted.
Prosper Law is Australia’s online law firm, providing clear and practical legal advice to businesses and individuals nationwide. Our employment law services include contract reviews, enterprise agreement advice, compliance audits, and flexible fixed-fee or hourly arrangements for employees and employers.
Frequently Asked Questions
Are pay secrecy clauses completely banned in Australia?
Yes. Pay secrecy clauses are unlawful in employment contracts entered into or amended after 7 December 2022, and penalties apply from 7 June 2023.
Can employers still use fixed-term contracts?
Yes, but only in limited circumstances. Most rolling or long-term fixed-term arrangements exceeding two years are now prohibited unless an exception applies.
Employers can learn more in our Employer Guide: Fair Work Changes from1 July 2025.
Can an employer refuse a flexible work request?
Yes, but only on reasonable business grounds and after genuine consultation. Employers must now provide detailed written reasons and consider alternatives.
What happens to old enterprise agreements (“zombie agreements”)?
Pre-Fair Work Act enterprise agreements will automatically terminate on 7 December 2023 unless an extension is approved by the Fair Work Commission.
What should employers do to stay compliant with Fair Work changes?
Employers should regularly review contracts, policies, and enterprise agreements and seek advice from a workplace lawyer to ensure compliance with ongoing reforms.
Learn more in our Fair Work Act Guide for Employers.
Fair Work laws are changing fast. If your contracts, policies, or enterprise agreements haven’t been reviewed recently, now is the time.
About the Author
Farrah Motley
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