New Requirements for Fixed-Term Employment From 6 December 2023

The new requirements for fixed-term employment introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) will be commencing on 6 December 2023.

From 6 December 2023, the new requirements include but aren’t limited to:

1. Employers must provide fixed-term employees with a new Fixed Term Contract Information Statement prepared by the Fair Work Ombudsman.
2. Fixed-term employment periods must not exceed 2 years.
3. Fixed-term employment where the employee is engaged to perform the same job must not consist of two consecutive, back-to-back terms or engagements regardless if it exceeds or is under a 2-year period.

However, there are exceptions to the new statutory requirements, where:

• The employee engagement is in relation to a training arrangement such as an apprenticeship.
• The employee is engaged to perform only a distinct and identifiable task involving specialised skills.
• The employee is engaged to undertake essential work during a peak demand period such as fruit picking or other seasonal work.
• The employee is engaged to work during emergency circumstances or during the temporary absence of another employee.
• The year the employee enters into the contract, the employee’s earnings are above the high-income threshold.
• The engagement is in relation to work subject to non-renewable government funding payable over a period of more than 2 years.
• The modern award that covers the employee includes a clause that allows the use of fixed-term employment which is prohibited by the limitations.
• The engagement is for a governance role that has a time limit under the governing rules of the corporation or association.

Should an employer enter into a fixed-term contract with an employee, which is in breach of the new legislative requirements of section 333E(1) of the FW Act, the expiry date of the proposed fixed-term employment is taken to have no effect however all other terms of the contract will remain valid.

This means that employers will not be able to rely on the common benefits that fixed-term employment may provide such as:

• The employee’s exclusion of notice of termination and redundancy pay.
• The employee’s exclusion from unfair dismissal protections.
• No requirement to provide the employee with permanent or ongoing employment after the fixed period.

The new requirements identified in paragraphs 1-3 are also civil remedy provisions, meaning civil remedy proceedings can be commenced against the employer for breaching these new fixed-term requirements.

For more information on the new requirements for fixed-term employment from 6 December 2023, please do not hesitate to get in contact with our offices.