The wave of reforms under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 introduced new laws that prohibit employers from advertising employment opportunities at a rate of pay that would contravene the Act or a Fair Work instrument (e.g. an Award or Enterprise Agreement).
There are also special provisions that apply for piecework, which is work that is paid at a fixed rate based on the amount done rather than the time it takes to do the job. The Act requires advertisements of piecework to include any periodic rate of pay which the pieceworker would be entitled to receive.
There is a defence for employers if they had a “reasonable excuse” for non-compliance, however what constitutes a ‘reasonable excuse’ is not defined in the Act and therefore it will ultimately depend on the individual circumstances at hand. As an example, the explanatory memorandum for the Act says that a reasonable excuse may include where an employer exercised due diligence to ensure they advertised compliant rates of pay, but incorrect advice about the applicable rates was given and reasonably relied on by the employer.
Employers now face fines under these new provisions, with the maximum fine being 60 penalty units which equates to $18,780 for an individual and $93,900 for a company.
What does this mean for employers?
- Employers need to be very mindful when including rates or pay in job advertisements and ensure that they do not advertise a role that is at a rate below the applicable Award or Enterprise Agreement.
- The Fair Work Ombudsman is now tasked with enforcing these new laws and so employers may get a call from an inspector of the Fair Work Ombudsman regarding a job advertisement if they have concerns that it might breach these new provisions.
For advice and support regarding rates of pay and complying with these new provisions, contact the team at Focus HR, we are here to help.