Pay Secrecy a Secret No More

As part of the Fair Work Legislation Amendment [Secure Jobs, Better Pay] Act 2022, these types of prohibitive clauses have become unlawful, and now if employees choose to exercise their right to discuss their remuneration, they will be protected from any adverse action.

Important Dates

From 7 December 2022, a newly executed or varied contract cannot include any clause which prohibits a person from discussing their pay. Any such clauses are deemed invalid and will have no effect. 
From 7 June 2023, all employment contracts throughout Australia must be compliant with the amendments. 

What Does this Mean for Clubs?

Existing contracts with pay secrecy clauses are currently not subject to the prohibitions. However, member clubs should take action to ensure their contracts of employment are compliant by June 2023.
It will be an offence for a club to execute or vary a contract with an employee that contains a pay secrecy clause. The penalty will be up to $63,000 for an employer club acting in contravention.

All pay secrecy clauses in Enterprise Agreements (whether new or existing) are also no longer enforceable.

What Training Should I Provide?

It’s important for clubs to understand that the amendments haven’t simply set rules for what can and cannot be included in a contract of employment (and Enterprise Agreement), they have gone further and introduced new workplace rights for employees who decide to disclose (or not disclose) information relating to their remuneration.

Although typically an uncomfortable topic to broach, all employees nonetheless now have the right to ask other employees about their rates of pay and make inquiries into other workplace information, such as hours of work, to assist them in ascertaining their rates of pay. 

Other inquiries considered a workplace right include, but are not limited to: hours of work, shift patterns, training and certification. Member clubs must take note — they cannot take adverse action if an employee who elects to exercise their right to discuss these workplace rights, as those employees are protected by the general protections provisions under the Fair Work Act.

What Does this Mean for the Future?

These changes are intended to turn an employer’s mind to whether the remuneration of their employees is fair and comparable to that of other employees in the same workplace and industry, and to see a reduction in the gender pay gap.