This change means employers can no longer include terms in employment contracts or agreements to restrict employees from discussing their pay, or terms and conditions of their employment relating to their pay, with any other person.

In the first decision relating to this change, the Fair Work Commission (FWC) has rejected an employer’s attempt to remove a list of client names from their proposed enterprise agreement as they argued it contained confidential information.

The FWC considered whether a list of client names in the agreement for the technical services provider was commercially sensitive but the employer did not provide evidence to support that it was.

The list of client names had been included in the agreement to outline the different overtime payments employees would be entitled to for working at these client sites compared to other sites. A copy of the agreement containing the list of client names had already been distributed to employees.

The FWC observed this information would need to be included and available if a third party were to accurately check the entitlements for an employee covered by the Agreement.

In its decision, the FWC also highlighted that if the business prohibited its employees from disclosing this information it would breach s333B of the Act that allows an employee to disclose (or not disclose) their pay and other related information.

Therefore, the FWC approved the agreement without issuing the confidentiality orders that the business had applied for.

Learnings for business

Employers need to be aware that any contracts and agreements entered into from 7 June 2023 cannot contain pay secrecy provisions as they will not be enforceable.

There are penalties payable if employers deliberately include clauses which refrain employees from discussing their remuneration details. If a contract was executed prior to 7 December 2022 then these provisions will remain valid until that contract is varied.

How the Victorian Chamber can help

To discuss the changes to the legislation and how they may impact your business, please contact our Workplace Relations Advice Line on (03) 8662 5222.

The Workplace Relations Consulting team can also provide specific and tailored advice to support your business. They can also assist with the step-by-step process of enterprise bargaining, policy and procedure reviews and compliance audits in line with modern awards and wages.

The Victorian Chamber offers an extensive number training courses, webinars and briefings to help you keep up to date with the changes in employment law.