Employment Law Update for Employers
by Hannah-Jean McCarthy
19 March 2024
The new coalition Government have implemented numerous legislative changes affecting employers. This is a good time for employers to pause, consider updating employment agreements, check payrates and (if your employees are on a visa) review your compliance with Accreditation obligations.
Minimum Wage Increase
As of 1 April 2024, the minimum wage will increase to $23.15. The starting out and training wage will increase to $18.52.
If an employee already earns $23.15 per hour, there is no legal requirement for employers to provide a pay rise.
90-Day Trial Period
The Employment Relations (Trial Periods) Amendment Act 2023 extends the right to businesses with 20 or more employees to include a 90-day trial period clause in employment agreements for new employees.
All 90-day trial clauses must be drafted and implemented correctly to be effectively relied upon. A valid trial period clause must:
- be included in the written employment agreement;
- specify that the employee is bound to the 90-day trial clause;
- set out the commencement and duration of the trial period;
- specify the notice period for termination under the 90-day trial (for example one week notice period);
- specify that the employee is unable to raise a personal grievance or proceedings relating to the dismissal;
- be applicable to new employees only (i.e. not someone who has worked for the employer in the past); and
- be entered into willingly by the employee before they commence employment. For example, an employee should not sign the agreement and start work on the same day.
A valid 90-day trial clause allows an employer to give notice of dismissal to an employee during the trial period, without the employee being able to raise a personal grievance for unjustified dismissal or raising claims related to the dismissal process. However, it does not prevent an employee from raising a grievance for unjustified disadvantage, discrimination or harassment.
If an employer decides to dismiss a trial employee, it is crucial that the notice is given during the 90-day period, and that the correct notice period is provided. In some cases, this may mean that employment does not formally end until after the 90-day period, but this does not invalidate the 90-day trial protection for the employer.
Despite the above, employers employing migrants on an Accredited Employer Work Visa cannot include a 90-day trial clause in the employment agreement. This is because a job check application will be declined if an employment agreement includes the clause.
Worker Protection (Migrant and other Employees) Act 2023
The new Worker Protection (Migrant and Other Employees) Act 2023 modifies the Employment Relations Act, the Immigration Act and the Companies Act.
An in-depth analysis of the legislation can be found here.
However, key takeaways employers should be aware of include:
- Immigration Officers and Labour Inspectors can now:
- request documents to verify that employers of migrant workers are complying with obligations; and
- issue an infringement notice when employers fail to provide requested information.
- There are three new infringement notices aimed at employers under the Immigration Act:
- allowing unauthorized individuals to work,
- employing someone in violation of visa-related conditions, and
- failing to comply with document provision requirements within the stipulated timeframe.
- The Chief Executive of MBIE can now publish the names of employers convicted of immigration offences or issued with infringement notices.
- A conviction for migrant exploitation or people trafficking has been added to the grounds on which the Court can disqualify an individual from being a company director or taking part in company management.
Pitt & Moore’s expert employment team can assist you with reviewing and drafting employment documents to ensure they comply with the new changes.
If you would like more in-depth advice or further information about the content of this article, please get in touch with the team at Pitt & Moore on 03 5488349.
Disclaimer: The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.
