Employment Law Update – What has changed, what will change and how does it affect your business?

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Employment Law Update – What has changed, what will change and how does it affect your business?

As we take our first steps into 2023, it is prudent for employers to take stock of the key developments that took place in the Australian workplace law landscape in 2022. Notably, the introduction of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022.

We outline the key provisions below, as well as recommend actions for your business to consider:

Key Changes When and what is changing Recommended Actions
Prohibition of secrecy contract terms.


From 7 December 2022, employment contracts, written agreements or company policies must not contain provisions requiring employees to keep secret information about their pay, employment terms and other conditions. Review template employment contracts, written agreements or company policies and remove clauses that require secrecy, or to confirm that such clauses do not exist.

NB: Any contract entered into prior to 7 December 2022 with existing secrecy provisions will no longer have an effect (the balance of the contract will remain in force, however).

No policing of secrecy obligations From 7 December 2022, employers are prohibited from attempting to maintain secrecy around their employees’ pay. This means that employees have full autonomy to decide whether or not to disclose information about their employment terms, conditions, and pay. Employers are not permitted to monitor or control the sharing of this information by their employees. Review internal policies and practices and remove any right you may have to investigate, enquire or police employees for sharing information relating to their employment terms, conditions, and pay.
Flexible work arrangements From 6 June 2023, the right to request flexible work arrangements will be extended to include employees who experiencing family and domestic violence (FDV), and pregnant employees. The right will also extend to those employees if a member of their immediate family or household is experiencing FDV.

New employer obligations include:

(i).         discussing the request with the employee;

(ii).         consider the effect if the request is refused;

(iii).         the employer making a genuine efforts to offer alternate arrangements to accommodate the employee.

Employers must respond to a flexible working arrangement request within 21 days of the request being made.

Strict and defined conditions are noted in the event the employer is considering refusing the request.

Establish a clear internal policy and procedure for flexible work arrangements, taking into consideration the updated obligations as an employer.

If you already have an internal policy on flexible working arrangements based on the current legislative framework, please consider whether this policy requires updating.

Prohibition of fixed term contracts.


From 6 December 2023, employers will no longer be able to employ employees on a fixed-term contract for a term of two or more years (including extensions), or a fixed term contract which can be extended more than once.

Employers must not re-engage an employee on a new contract that is substantially similar to the role, nature and employment relationship of a previous contract entered into by the parties.

Employers should carefully review their current employment contracts to ensure compliance with these new standards and incorporate the Fixed Term Contract Information Statement.

Consideration should be given to the nature of the role and whether fixed-term contracts are the appropriate mechanism or whether alternative arrangements should be considered.

Positive duty to eliminate sexual harassment A positive duty is now imposed on employers to take reasonable and proportionate measures to eliminate workplace sexual harassment, victimisation and sex discrimination.


Employers should implement robust measures to prevent instances of unlawful sex discrimination or sexual harassment, such as collecting and monitoring data, providing appropriate support to employees, and providing regular training and education on the subject.

NB: Simply updating policies and procedures will not be sufficient.

Threshold established for ‘harassment on the ground of sex’ From 13 December 2022, the ‘seriously demeaning’ threshold was amended to align with existing legal standards and other offences under the Sex Discrimination Act 1984 (Cth). Employers should review their existing internal sexual harassment policies and consider updating scope and definitions to align with the update.

If you do not have in place an internal sexual harassment policy (or a broader anti-discrimination policy), we would recommend having regard to preparing and implementing such a policy to ensure better oversight over compliance.

Paid family and domestic violence leave From 1 February 2023, all employees, including casuals, will be entitled to 10 days of paid family and domestic violence leave. Employers should update any relevant policies or procedures, effective from 1 February 2023.

Employers should be mindful that the scheme appears that it will operate similarly to the sick leave entitlements in that the employee may be able to claim domestic violence leave retrospectively, provided the employer is comfortable with the evidence supplied and other conditions required to be met.

NB: for confidentiality and sensitivity reasons, the accrual of this leave must not be shown on the employees’ pay slips.


Employers have the opportunity to make positive changes to ensure compliance with updated employment laws. While some of these changes may not be mandatory yet, it’s important to proactively consider them.

At Hitch Advisory, we’re here to help employers stay ahead of the curve. We offer comprehensive support, from reviewing current employment agreements and policies to preparing future contracts and internal documents that incorporate the new changes. By partnering with us, employers can feel confident that they’re creating a fair and compliant workplace that prioritises the needs of their employees.

3 April 2023

Lazar Krstic, Principal, Hitch Advisory

Aston Chee, Associate, Hitch Advisory

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Important Disclaimer: The material contained in this publication is of general nature only and is based on the law as of the date of publication. It is not, nor is intended to be legal advice. If you wish to take any action based on the content of this publication, we recommend that you seek professional advice.

High Court makes preference claims harder for liquidators

By | Asset Protection, Creditor and Debtor Management, Dispute Resolution | No Comments

In February the High Court of Australia delivered judgment in Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2 in which the Court considered the application of the “peak indebtedness rule” under Part 5.7B of the Corporations Act 2001 (Act). In the result, the High Court upheld the decision of the Full Federal Court that Part 5.7B, particularly s 588FA(3), does not incorporate the peak indebtedness rule.

Section 588FA(1) of the Corporation Act 2001 (Act) provides that a transaction (most commonly a payment) is an unfair preference given by a company to a creditor which results in the creditor receiving more than the creditor would have received if the creditor had proved in the winding up of the company. The provision applies to payments made by a company to a creditor within 6-months of the relation-back day (most commonly the date the company entered liquidation). Payments of this kind are voidable, and therefore recoverable by the liquidator, if the company was insolvent at the time or became insolvent because of the payment.

Section 588FA(3) applies to circumstances where a company and a creditor have a continuing business relationship in which those transactions serve to increase and reduce the net indebtedness by the company to the creditor. The provision embodies what is commonly referred to as the running account principle which operates to treat all of the transactions as single transaction to determine whether or not the “transaction” is an unfair preference.

Following the decision in Rees v Bank of New South Wales (1964) 111 CLR 210, liquidators were, able to nominate the date and therefore the value at which the running account commenced. This greatly favoured liquidators in that it allowed the liquidator to nominate the date at which the debt owed by the company to the creditor was at its highest (“peak indebtedness”) and to thereafter recover all payments made to the creditor in that period between the peak indebtedness day to the relation-back day. If the payments made to the creditor reduced the indebtedness of the company to the creditor, the payments (or the transaction) would be unfair preferences and voidable at the suite of the liquidator.

At first instance the Federal Court found that the payments made by the company in liquidation within the 6-month prescribed period were unfair preferences by applying the peak indebtedness rule. The creditor appealed to the Full Court of the Federal Court, which overturned the decision and rejected the peak indebtedness rule.

Further the Full Court found (and the High Court subsequently agreed) that the peak indebtedness rule was inconsistent with:

  • the language of s 588FA(3) which requires all transaction to be treated as a single transactions;
  • the doctrine of the ultimate effect; and
  • running account principle.

The High Court held that the correct date was the first day of the prescribed 6-month period (if the company in liquidation satisfied the other criteria of s 588FE of the Act). The High Court rejected the argument that a liquidator is allowed, due to the function of their office, to choose the peak indebtedness date and disregard all prior transactions which rightfully form part of the ongoing business relationship between the creditor and company in liquidation.

The High Court noted that the purpose of the running account principle is not to maximise the potential for clawback of payments from creditors, but that was the effect of applying the peak indebtedness rule and therefore rejected the application of the rule. The determination in Rees was correct for the law at that time, but the legislature had purposefully removed this power from the liquidator and instead prescribed a date by virtue of the interaction of s 588FE and 588FA of the Act.

But what does this mean? This means that the net indebtedness, for the purposes of section 588FA, of a running account between a company in liquidation and a creditor is calculated as the difference level of indebtedness at the start of the 6-month relation-back day period (or a later date if the company in liquidation is deemed insolvent on a later day) and the date the cessation of the business relationship.

This will likely reduce the instances in which liquidators would otherwise seek to recover amounts by operation of s 588FA.

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Tips for Prospective Franchisees

By | Franchising | No Comments

The franchise business model has many advantages for a prospective franchisee, including access to an established brand name, and business support from the franchisor. These advantages are assets to a business operator whether you are an existing business owner or looking to start your first venture.

If you are considering whether to start a new franchise, make sure you give some thought to the tips we have set out below.

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AHPRA Code of Conduct Update – Important Changes for Pharmacists

By | Pharmacy | No Comments

As of 29 June 2022 the Pharmacy Board of Australia (“Pharmacy Board”), along with eleven other National Boards, replaced the previous code of conduct (“Code”) (first put into effect on 17 March 2014) with a revised and updated Code. While these updates should be considered by all pharmacists, we note that some will be of particular significance for proprietor pharmacists.

We have detailed some of the key updates below. Read More

Franchise Compliance – the increased risk of getting it wrong!

By | Directors | No Comments

Hot on the tail of last year’s changes to the Franchising Code of Conduct aimed at improving transparency and protection to franchisees within the franchising industry, the Federal Government also passed the Treasury Laws Amendment (2021 Measures No.6) Bill 2021 which amongst other things results in significant increases in penalties for contraventions of the Franchising Code of Conduct.

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Mandatory Employee Vaccine Update

By | Covid-19 | No Comments


Currently there is a major focus on the rights and obligations of employers to consider mandating Covid-19 vaccinations for their workforce (particularly those in Sydney and Melbourne). The situation evolves constantly. With the recent announcement that SPC has imposed a mandatory Covid-19 vaccine regime on all manufacturing plant workers and pertinent comments from the Prime Minister and Cabinet, all businesses need to reconsider what is right for their workplace.

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Senior Officers of Franchisors Beware

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In February 2019, the Federal Court found car detailing and cleaning franchisor Geowash Pty Ltd in breach of numerous obligations under the Australian Consumer Law. Geowash was ordered to pay $4.2 million in penalties, including individual penalties of $1.045 million against Geowash’s director, and $656,000 against Geowash’s franchising manager. The ACCC began investigating Geowash in 2015 and subsequently launched legal proceedings when it was deemed Geowash was making false and misleading representations and acting unconscionably towards its franchisees.

In contravention of the Franchising Code of Conduct, both the director and franchising manager were ordered to pay a further $1 million as partial redress to franchisees and were subsequently disqualified from managing corporations in Australia for a period of five and four years respectively. They jointly appealed this decision in 2021.

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COVID-19 – Can you require your employees to be vaccinated?

By | Covid-19 | No Comments

The dismissal of front-line care workers who refused the flu vaccination in 2020 has recently been upheld in three separate Fair Work Commission (FWC) decisions. In each case the dismissed employee was working directly with vulnerable and often immunocompromised individuals and as a result employers made flu vaccination mandatory. In each situation the FWC decided that the mandating of the vaccine was a lawful and reasonable direction meaning failure to comply was valid reason for dismissal.

Importantly, in each case employees were given ample time to consider their position and determine whether they would comply with the direction or object to vaccination. In all three cases the employees objected by claiming medical exemption to receipt of the vaccine, specifically that the flu vaccination had medical contraindications (all of which were unsubstantiated).

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Franchising Code of Conduct Reform – Change has Arrived!

By | Franchising | No Comments

After years in the making, the Competition and Consumer (Industry Codes-Franchising) Amendment (Fairness in Franchising) Regulations 2021 was passed today, 1 June 2021, which amends the Competition and Consumer (Industry Codes – Franchising) Regulation 2014, commonly known as the Franchising Code of Conduct (Code).

Despite delays, the Government has kept the 1 July 2021 commencement date for the majority of the substantive changes, leaving very little time for franchisors to get their house in order. The new dispute resolution procedure kicks in even earlier, from 2 June 2021.

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