20 Aug Pay Secrecy
Pay secrecy provisions were part of the various amendments to the Fair Work Act 2009 (Cth) (Act) introduced through the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Bill).
These provisions will have far reaching implications for employers and employees.
Workplace Rights on Prohibiting Pay Secrecy
The primarily pay secrecy provision is section 333B of the Act.
Section 333B(1) of the Act provides that an employee may disclose, or not disclose, their remuneration or any terms and conditions of their employment that are reasonably necessary to determine remuneration outcomes.
Section 333B(2) of the Act provides that an employee may ask another employee about the other employee’s remuneration and any terms and conditions of the other employee’s employment that are reasonably necessary to determine remuneration outcomes.
The Revised Explanatory Memorandum for the Bill at paragraph 408 includes that section 333B of the Act allows employees to use information gained by asking about remuneration and relevant conditions to assess whether their remuneration is fair and comparable to that of other employees in the same workplace or industry.
Section 333B(3)(a) of the Act includes that each of the rights above is a workplace right within the meaning of Part 3-1 of the Act. Part 3-1 of the Act is the general protections part of the Act. For an overview about general protections, please see our article here.
Pay Secrecy Clauses
The pay secrecy provisions introduced by the Bill were not limited to workplace rights on pay secrecy, but extended to prohibiting pay secrecy clauses in contracts and fair work instruments.
Section 333C of the Act provides that a term of a fair work instrument or a contract of employment has no effect to the extent that the term would be inconsistent with section 333B(1) or (2) of the Act.
Section 333D of the Act provides that an employer would contravene the section if they enter into a contract or other written agreement with an employee and the contract or agreement includes a term that is inconsistent with the pay secrecy provisions in 333B(1) or (2) of the Act.
Given these sections of the Act, employers should review their employment contracts and ensure that the contracts do not include any provisions that would fail to comply with the pay secrecy provisions of the Act.
What is Next?
The effect of sections 333B, 333C and 333D of the Act will likely have broad implications. While there have been some judgments on pay secrecy handed down, the implications yet to be fully explored by Courts and Tribunals at the date of this article.
In the case of Equans Electrical And Communications Pty Ltd [2023] FWCA 1705, Deputy President Dobson did not grant a request for a redaction of the customer/client names under schedule J of the Equans Electrical and Communications Pty Limited NSW Enterprise Agreement 2023-2026 for the reason, among others, that this redaction would breach section 333B of the Act.
If you require further information on pay secrecy, feel free to contact us.
See more articles on the Fair Work Act 2009 (Cth) at our page here.
Written by Angus Macpherson.
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