This article summarises some of the key changes of which all employers need to be aware, a breach of which may lead to significant financial penalties against the employer. The key topics covered below are:

1. pay secrecy prohibition;
2. advertising unlawful pay rates;
3. flexible working arrangement related to pregnancy and domestic violence victims;
4. new categories of discrimination (protected attributes relating to gender, breastfeeding, and intersex status);
5. sexual harassment in connection with work to be prohibited under the Fair Work Act with broader application; and
6. unpaid parental leave.

Pay Secrecy

From 7 December 2022, employees have new workplace rights to:

1. share information about their pay or employment terms and conditions with other people, including fellow employees; and
2. ask other employees about their pay or employment terms and conditions.

Employees may choose not to provide this information to other employees if they do not wish to do so.

Furthermore, employers are also prohibited from including “pay secrecy” clauses in employment contracts. A “pay secrecy” clause is a term in an employee’s employment contract which denies employees and future employees the new workplace rights as described above. Any pay secrecy clauses included in an employment contract entered into or varied on or after 7 December 2022 will be void. Further, from 7 June 2023, the inclusion of a pay secrecy clause in a new contract entered into on or after 7 December 2022 could also result in the employer being subject to significant fines.

The Fair Work Ombudsman will begin enforcing this requirement from 7 June 2023.

Job Advertisements

From 7 January 2023, employers cannot include pay rates which would breach the Fair Work Act 2009 (Cth) (FWA), a modern award, or an enterprise agreement in their job advertisements. This prohibition applies from 7 January 2023 regardless of when the job ad was posted.

A breach of this provision could result in significant fines for employers.

Flexible Work Arrangements

From 6 June 2023, the existing right to request flexible working arrangements under the FWA will be extended to include, in addition to other eligible employees, any employees who are:

1. personally (or whose member of their immediate family or household is) experiencing family and domestic violence; or
2.  pregnant.

If an employer agrees to a request for flexible working arrangements, they are required to confirm their acceptance of the request in writing within 21 days of the request.

Employers may only refuse a request for flexible working arrangements if:

1. they have discussed the employee’s request for flexible working arrangements with them;
2. they have genuinely tried to make an agreement with the employee to accommodate the employee’s circumstances by finding alternate working arrangements (but an agreement did not eventuate);
3. they have considered the consequences to the employee if they refuse the employee’s request; and
4. the refusal is based on reasonable business grounds (e.g., any changes would be too costly for the employer or impractical).

If an employer has validly refused a request for flexible working arrangements, the employer is required to provide a written response to the employee within 21 days. This response must:

• provide an explanation of the reasonable business grounds for why the employee’s request was refused, and explain how those grounds relate to the employee’s request;
• explain any other changes the employer is willing to make to try to accommodate the employee’s circumstances to an extent, or otherwise, state that there are no such changes which can be made; and
• provide information to the employee about how the employee can refer a dispute the Fair Work Commission.

New Protected Attributes

From 7 December 2022 onwards, three further attributes have been added to the list of attributes under the General Protections provisions of the FWA in relation to prohibited discrimination. Employers are now also prohibited from discriminating against employees for the following new protected attributes:

1. breastfeeding;
2. gender identity; and
3. intersex status.

Employers who take adverse action against an employee on the basis of these attributes, may be subject to a general protections (discrimination) application by the employee.

Sexual Harassment

From 6 March 2023, sexual harassment in connection to work will officially be prohibited by the FWA. This means that sexual harassment in connection to work will come under the jurisdiction of the Fair Work Commission, allowing the Commission to deal with disputes on such matters. Therefore, not only can complaints be made to the Australian Human Rights Commission for sexual harassment under the Sex Discrimination Act 1984 (Cth), there is now a further venue for people to make an application to deal with such behaviours.

This prohibition covers sexual harassment suffered by:

1. workers, which includes (but is not limited to) employees, contractors, work experience students and volunteers;
2. future workers;
3. anyone conducting a business or undertaking.

The protection does not apply to workers who start at a workplace before 6 March 2023.

Under this protection, an employer may be held to be vicariously liable for any sexual harassment committed by an employee or agent which is in connection with their work. This does not apply if the employer is able to prove that they took all reasonable steps to prevent the sexual harassment. For more information on this, please see our previous article on the new workplace sex discrimination laws.

An employer who is found to be in breach of this protection, may be liable to pay significant fines.

Unpaid Parental Leave

From 6 June 2023, employers will need to respond to requests for an extension of unpaid parental leave in a specific way.

If an employer makes a request for an extension of their unpaid parental leave, the employer may choose to agree to the request as is, or discuss the request with the employee and agree to a different extension period. If the employer agrees to some form of extension, then they will need to confirm this in writing to the employee within 21 days of the request.

An employer may only refuse the request if:

1. the employer discussed the request with the employee;
2. the employer genuinely tried to reach an agreement with the employee about the extension (but an agreement did not eventuate);
3. the employer considered all the consequences to the employee of refusing the extension; and
4. the employer’s refusal was on reasonable business grounds.

If the employer refuses the request, the employer is required to provide a written response to the employee’s request within 21 days. The response must provide:

1. an explanation of the reasonable business grounds for why the employee’s request was refused, and explain how those grounds relate to the employee’s request;
2. an alternate period of extension the employer is willing to agree to, or otherwise, state that they will not agree to any extension; and
3. information to the employee about the Fair Work Commission’s powers to hear a dispute on the matter.

If the matter proceeds to an arbitration by the Fair Work Commission, and the Commission makes an order which is unfavourable to the employer, the employer will be subject to significant fines if the employer breaches that order.

PH Solicitor understands that many employers and employees will have questions about these new laws and the implications they will have on their workplace, and that staff may need training as to what type of workplace conduct is unlawful, so as to reduce the chances of a claim against the employer for unlawful or discriminatory actions on an employee. Please contact us on admin@phsolicitor.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.

Disclaimer:  Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.

The post New Changes to Workplace Laws which Your Business Needs to Know About appeared first on PH Solicitor.

On 28 November 2022, the Australian Federal Parliament passed the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill. This bill implements the remaining recommendations of sex discrimination commissioner Kate Jenkins’ 2020 Report, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces. As stated in our first article on sex discrimination in the workplace, the previous Federal government decided not to implement some of the proposed changes.

These new laws will significantly re-shape the legal obligations of businesses and employees in the way they respond to sex discrimination in the workplace. Key changes made in these new laws include:

1. making it unlawful for a person to subject another person to a hostile workplace environment on the grounds of sex;
2. imposing a positive duty on businesses to eliminate unlawful sex discrimination from the workplace; and
3. the removal of procedural barriers for representative bodies to initiate actions in the federal courts.

This article explains these changes and how they will affect employers in how they manage their workplaces, and employees who wish to make a complaint of sex discrimination against their employer or colleagues.

Hostile Workplace Environments

Hostile workplace environments have been a problem for workers according to the 2022 AHRC survey. Of those surveyed, the most common forms of sexual harassment experienced by workers were inappropriate comments or jokes (40% of women, 14% of men), and intrusive questions about a person’s private life or appearance (32% of women, 14% of men).

A major change to the law which seeks to address this is that it will now be unlawful for a person to subject another person to a workplace environment which is hostile on the ground of sex.

A person will be deemed to have subjected another person to a hostile workplace environment if they:

1. engage in conduct (including the making of an oral or written statement) in the workplace;
2. the other person was at the workplace at the time of the conduct, or after the conduct occurred; and
3. a reasonable person would have anticipated that the conduct may result in a workplace environment which is offensive, intimidating, or humiliating to members of the other person’s sex based on the other person’s sex, or a characteristic that generally appertains, or is generally imputed to persons of that sex.

Put simply, a person cannot make another person feel offended, intimidated, or humiliated because of their sex by making inappropriate oral or written statements in the workplace. An example of when this might occur is where a male employee makes an inappropriate joke about women at work whilst a female colleague is present. It does not matter if the workplace was hostile for another reason that was more (or less) substantial than the sex of the other person. The workplace will be considered hostile if the sex of the other person was one of the reasons.

In determining whether a person has created a hostile workplace environment, the following factors must be taken into consideration:

1. the seriousness of the conduct (the more serious the conduct, the more likely the person has behaved unlawfully);
2. whether the conduct was continuous or repetitive (if the conduct is repeated and persistent, then it is more likely to have created a hostile workplace as opposed to a single isolated incident);
3. the role, influence or authority of the person engaging in the conduct (the more senior the person involved, the more likely it is that their conduct was unlawful); and
4. any other relevant circumstance.

Any person who is found to have created a hostile workplace environment on the basis of sex may be subject to the same complaints and dispute resolution procedures as other instances of unlawful sex discrimination.

Employers should have discrimination policies (including those covering sex discrimination and sexual harassment) which are known and understood by their employees. They should also supervise their employees and reprimand any behaviour which may create a hostile workplace environment. They must be prepared for any possible complaints made by employees against colleagues if this behaviour occurs in the workplace, and respond appropriately in accordance with their complaints procedure.

Positive Duty

Another change to the law which employers must take note of is the obligation imposed on businesses to take reasonable and proportionate measures to eliminate unlawful sex discrimination (which also includes victimisation).

Importantly, the use of the word “business” encapsulates both employer-employee relationships and principal-contractor relationships. The essential element is that work is being performed by one party for the other’s business. This duty also applies to the business’ agents.

In determining whether a business has taken all reasonable steps to eliminate sex discrimination, the following factors must be taken into consideration:

1. the size, nature and circumstances of the business (the bigger the business, the more likely it will be that they have to implement more measures to eliminate sex discrimination);
2. the business’ financial or other resources (if the business has greater financial and other resources, then the more likely it will be that they have to implement more measures to eliminate sex discrimination);
3. the practicability and the cost of steps to eliminate unlawful sex discrimination (depending on the resources, size and nature of the business, it may be that implementing certain measures will be deemed disproportionately expensive and/or impractical); and
4. any other relevant matter.

In order to enforce the positive duty, the AHRC has been given powers to make inquiries about whether a person is complying with their positive duty to eliminate sex discrimination from their business. The AHRC will make such inquiries if it reasonably believes that the person is not doing so.

After finalising its inquiries, if the AHRC believes that the person has not complied with their positive duty, then it can issue a compliance notice to the person setting out the details of their failure to comply with their positive duty and the steps they must take within a specified period to remedy the breach of duty. If the AHRC believes that a person has failed to comply with a compliance notice, it may apply to the Federal Court or Federal Circuit and Family Court of Australia to make an order directing the person to comply with the notice.

Employers must be aware of this new positive duty as it could have significant consequences for their business’ reputation (if found to be breaching this duty). Employers need to make an assessment on whether they are currently implementing adequate measures to eliminate sex discrimination in the workplace. They should do this by weighing up what measures they are currently implementing to prevent sex discrimination against the considerations outlined above. They should bear in mind that larger and better-resourced employers will be expected to have implemented more comprehensive steps than smaller and less-resourced employers.

If the employer does not believe that they have done enough to prevent sex discrimination in their workplace, they should assess what measures they can reasonably implement within their means and then implement those measures.

Some measures which most employers should be able to implement include:

1. implementing a policy for sex discrimination (if they have not already done so) and ensuring that the policy is readily accessible and understandable by persons from all backgrounds and cultures;
2. requiring employees to attend regular training and/or education seminars regarding what conduct is unacceptable or unlawful in terms of sex discrimination;

PH Solicitor can provide our services to your business by conducting such training and educational seminars for your employees.

3. displaying factsheets and posters in the workplace reminding employees of their obligations regarding sex discrimination; and
4. ensuring that employees have read and understood the employer’s sex discrimination policies. To do so, the employer may wish to allocate time during their employees’ day for them to review the policy. After doing so, the employer should require the employee to sign a document stating that they have read and understood the policy.

Implementing such measures will help ensure that you and your business comply with the new positive duty.

Representative Applications

The new laws now remove the procedural barriers experienced by representative bodies, such as a union, who can now initiate an action on behalf of a group of people where the matter is not resolved in the AHRC. Previously such representative bodies were unable to initiate an action in the federal courts on behalf of a group of people. This is no longer the case with these laws.

Further Changes Likely

It is likely that in the future there will be further changes made in relation to the awarding of costs  where court proceedings are necessary in relation to a complaint. The suggested default position is to not expose complainants of sex discrimination to adverse costs orders by having each party bear its own costs no matter the outcome of the dispute. This matter is currently being considered by the Attorney-General’s Department and could have important implications for employers accused of breaching sex discrimination laws.

Conclusion

These new sex discrimination laws are likely to fundamentally impact how businesses and employees respond to sex discrimination in the workplace, making it even more crucial from a legal-compliance perspective that businesses are taking active steps to eliminate sex discrimination in the workplace.  These laws put greater personal responsibility on individuals (but also on employers) to be aware of their behaviour and the workplace environment they create. Employers must now ensure that they remain proactive in the fight against sex discrimination and to be aware of the behaviours of their workers. Doing so would help them avoid the reputational and financial consequences of breaching the law.

PH Solicitor understands that many employers and employees will have questions about these new laws and the implications they will have on their workplace. Please contact us on admin@phsolicitor.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.

Disclaimer:  Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.

The post New Laws Passed on Sex Discrimination in Workplaces appeared first on PH Solicitor.