THE KEY CHANGES FOR EMPLOYERS AND RECOMMENDED 2023 ACTION ITEMS

This is our third and final email update on the most important changes regarding the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (“the Act”) in a three-part series to follow weekly throughout January 2023.

On 14 December 2022, we provided an email update for our national system employer clients entitled “Respect at Work Is Now Law” which covered the new positive duty for employers to take reasonable and proportionate measures to eliminate sexual harassment, harassment on the grounds of sex, hostile workplace environments and victimisation as far as possible. It also covered the Australian Human Rights Commission’s powers with respect to the positive duty and inquiring into systematic unlawful discrimination, the amended contravention of sex-based harassment and the extension of the time limit for an employee to make a complaint to the Australian Human Rights Commission.

WHAT DO EMPLOYERS NEED TO KNOW?

Here are the most important changes for employers to know:

1. New prohibition on sexual harassment in connection with work

In addition to the Respect at Work changes, from 6 March 2023, a new prohibition on sexual harassment in the workplace will be introduced to the Act making it unlawful for a person to sexually harass another worker.

The meaning of ‘sexually harass’ takes the same meaning of the Sex Discrimination Act 1984 (Cth), which includes making an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed, or engaging in other unwelcome conduct of a sexual nature in relation to the person harassed in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

The new prohibition will cover a broad definition of workers, prospective workers and persons conducting or undertaking a business from sexual harassment. The definitions of ‘workers’ and ‘workers in a business or undertaking’ take the same meaning as the Work, Health and Safety Act 2011 by including employees, contractors and volunteers. Vicarious liability with respect to the prohibition to sex harassment will also apply.

Under the changes, a worker, workers jointly, or their union, may make an application to the Fair Work Commission (“FWC”) to deal with a sexual harassment dispute by making a stop sexual harassment order or otherwise dealing with the dispute. If the FWC cannot resolve the sexual harassment dispute after dispute resolution processes have been explored, the FWC will issue a certificate that enables a party to elect not to pursue the matter further, or apply for the FWC to arbitrate the matter, or make a Court application.

2. Discrimination

From 7 December 2022, the list of protected attributes against workplace discrimination has been expanded to include the following list of protected attributes: gender identity, intersex status, and breastfeeding which broadens the scope of the general protections under the Act.

3. Small claims

From 1 July 2023, the small claims cap in court proceedings for recovering underpayments will increase from $20,000 to $100,000 and a successful party can be awarded the cost of any filing fees in respect of such claims.

4. Bargaining

There has also been significant reform with respect to multi-enterprise agreements, the better off overall test, bargaining disputes and ‘zombie agreements’. Some of the changes include:

There are three new streams of bargaining known as single-interest employer stream, supported bargaining stream and cooperative workplace stream;
From 6 June 2023, or an earlier date to be proclaimed, the better off overall test will require an overall assessment between the terms of the proposed agreement and applicable modern award rather than a detailed comparison of each term. The employees must still be better off overall;
From 6 June 2023, or an earlier date to be proclaimed, the FWC will have greater power with respect to dealing with disputes between parties in respect of new enterprise agreements; and
As of 6 December 2023, ‘zombie agreements’, i.e., workplace agreements that commenced prior to 31 December 2009, will terminate unless an application to extend the zombie agreement is made to the FWC.

WHAT DO EMPLOYERS NEED TO DO?

New year checklist

In light of the various changes above, our recommended action items for employers are:

Undertake an urgent review of policies and procedures relating to sex discrimination and sexual harassment to ensure they are consistent with the new laws;
Workplace training for staff on sex discrimination and sexual harassment;
Specialised workplace training for managers and supervisors to ensure they deal with claims and complaints promptly and are trained to identify the risks and hazards;
Work, health and safety risk assessment to ensure that hazards relating to discrimination and harassment are identified, and that risks are eliminated or mitigated;
Review supports available to employees who are subject to sexual harassment;
Audit your employment practices to identify whether your staff are being correctly remunerated to minimise the risk of an underpayment claim;
Develop a strategy to deal with your zombie agreement if you have one; and
Seek advice if you are interested in making a new enterprise agreement.

HOW WE CAN HELP YOU

WilliamsonBarwick can assist with helping you meet the new positive duty under the Respect At Work laws. We even run workplace training for staff, managers and supervisors. Let us know if you would like us to review your current policies and procedures.

We also offer a service called “Paylex” which assesses your current employment practices and identifies any payroll errors or misinterpreted award classifications.

And we can support you to develop an industrial strategy if you have or are seeking to make an enterprise agreement.

If you would like to discuss the implications of any of these changes with one of our lawyers, please let us know. We’re here to help.