Caught up in a whirlwind of workplace law reform? Catch up with the changes you need to know

There has been quite a lot of movement in the world of workplace regulation over the last year or so. While we are a forgiving bunch at Moores, the law is a little less so. So, in case you’ve let a few go through to the keeper, we’ve summarised some of the key changes below.

Sexual harassment

We’ve seen a lot of change in how the law views sexual harassment following the release of the Respect@Work Report (see more here). Since 10 September 2021, sexual harassment has been recognised as a form of serious misconduct in the Fair Work Regulations 2009 (Cth). The change is relevant to an employer’s obligation to provide notice of termination, but is more broadly an important signal in the workplace about the seriousness with which sexual harassment in the workplace can be treated.

The Fair Work Act 2009 (Cth) (FW Act) now contains a definition of sexual harassment, adopted from the Sex Discrimination Act 1984 (Cth), which provides that a person sexually harasses another person if they:

  • make an unwelcome sexual advance;
  • make an unwelcome request for sexual favours; or
  • engage in other unwelcome conduct of a sexual nature.

For a person to have sexually harassed someone else, it has to be reasonable for the person to expect that in the situation, there’s a possibility that their behaviour would offend, humiliate or intimidate the other person.

Additionally, since November 2021, employees who believe they have been sexually harassed have been able to apply to the Fair Work Commission for a Stop Sexual Harassment Order. These orders are similar to the Stop Bullying Orders you may be familiar with. However, reports of sexual harassment should be dealt with appropriately by your organisation so employees do not feel they must seek relief from the Fair Work Commission.

More recently, since 7 March 2023, employers have a positive duty to prevent sexual harassment, sex discrimination and victimisation in the workplace. This duty applies in addition to the duties under occupational health and safety law and extends to conduct by third parties, customers and clients. It requires employers to shift from taking a complaints-based approach to respond to sexual harassment after it has occurred, to taking a proactive approach to prevent sexual harassment before it occurs.

Supporting working families

There has been a raft of changes to support families and those impacted by domestic violence. Of note:

Family and domestic violence leave

  • The National Employment Standards (NES) were amended on 1 February 2023 to provide for 10 days of paid family and domestic violence leave (previously 5 days unpaid leave). Paid leave is available to full time employees in full, and to part time or casual employees where they are rostered to work.
  • It will not be pro-rated for part time or casual employees, will be renewed every work anniversary, and will not accumulate if unused. Grounds for taking this leave include staff making arrangements for their own safety or the safety of a close relative, court appearances, accessing police or counselling services and other appointments.
  • Paid family and domestic violence leave must not be recorded on an employee’s payslip.

Flexible work arrangements

  • See our article for more information about changes to enhance flexible work arrangement rights.
  • Disputes about requests for flexible working arrangements and extensions to parental leave can also be referred to the Fair Work Commission.

Compassionate leave

  • Compassionate leave has been extended to be available to employees where they, or a current spouse or de facto partner, have experienced miscarriage, stillbirth or death of a child.
  • Other employees may also be entitled to take compassionate leave if the child was an immediate family member or household member of the employee.

Discrimination at work

Employers have been unable to discriminate against a person on the basis of certain protected attributes under the FW Act such as age, sex, marital status and disability for some time now. On 7 December 2022, a person’s gender identity, intersex status and breastfeeding were added to the list of protected attributes. These characteristics were already protected under anti-discrimination law and employers are now prohibited from taking adverse action against employees on the basis of these characteristics.

Employment contracts

Since 7 December 2022, employees have a new workplace right to choose whether or not to disclose their pay and terms of their employment that might relate to their pay outcomes. This means that pay secrecy clauses in contracts entered into or varied after 7 December 2022 will be prohibited or will have no effect. Penalties can apply from 7 June 2023.

There are also changes on the horizon for fixed term contracts. From 6 December 2023, employers will be prohibited from entering into fixed term contracts:

  • where the term exceeds 2 years;
  • which contain the right to extend or renew the contract more than once; or
  • where the employee has previously been engaged on two consecutive contracts for the same or substantially similar work.

Some limited exceptions apply (e.g. where an employee earns more than the high-income threshold, which is currently $162,000). This means that an employer’s ability to enter into fixed term contracts will be significantly reduced. Employers should consider how this change will interact with the option for casual staff to request permanent employment status under the casual conversion provisions in the NES. Additionally, employers will need to provide employees engaged under new fixed term contracts a Fixed Term Contract Information Statement. See more on these changes here.

Changes to industrial awards

We’ve also seen a number of changes to industrial awards. For example, the Fair Work Commission has recently confirmed that pay increases for ‘direct care’ workers in the aged care sector will come into effect from 30 June 2023 (see more on those changes here). Changes to the Educational Services (Teachers) Award 2020 were also introduced last year (see more on those changes here).

Enterprise bargaining

The Secure Jobs Better Pay legislation introduced changes to enterprise bargaining requirements and has put a sunset date on ‘zombie agreements’, which will come to an end on 7 December 2023 unless extended by the Fair Work Commission. The Fair Work Commission has published a list of the zombie agreements that will be impacted by the change. Please contact us if you require assistance with your expired enterprise agreement.

Changes are also coming to single and multi-employer enterprise agreements. Employers looking to bargain this year and onwards may be impacted by the changes. See more on these changes here.

Recruitment advertising

From 7 January 2023, job ads must not include pay rates which breach the FW Act, industrial awards or enterprise agreements (e.g. rates lower than the minimum in the award, agreement or legislation). The Fair Work Ombudsman has the power to issue compliance notices and commence legal proceedings for any breach.

So, what do employers need to do?

Well, it depends on how their workplace is impacted by the changes. Some employers will take one or more of the following steps:

  • Conduct a policy review, taking a closer look at your bullying and harassment policies, disciplinary policies, parental leave and flexible working policies, and consider how these policies actually apply in practice;
  • Communicate any changes in your policies and practices to staff;
  • Perform a risk assessment to identify areas of risk and review the mechanisms your organisation has in place to prevent and respond to reports of sexual harassment;
  • Review current workplace supports for working families and seek advice (eg. process to consider and respond to flexible work arrangements, workplace facilities for those who require additional supports such as breastfeeding or expressing facilities);
  • Review organisational policies and frameworks for gender diverse employees to work safely and inclusively; and
  • Audit your fixed term contracts and your process for keeping track of casual and fixed term employment arrangements.

How we can help

Our Workplace Relations Team is passionate about helping employers facilitate positive change to make their workplace a safe and enjoyable space for everyone. We can guide you through identifying and implementing the changes necessary to meet your obligations and stay ahead of the pack, including working on your policies and contracts.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.