Fair Work Act changes impacting State system employers
In a previous ER Alert dated 22 December 2022 we outlined a range of amendments to Federal workplace relations laws made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), which became law in December 2022.
While these reforms are mostly relevant to national system employers, some of the changes also apply to WA Local Governments which have transitioned to the State industrial relations (IR) system.
The changes which affect State system employers are:
- Prohibition of sexual harassment in the workplace (commenced 6 March 2023)
- Changes to requests to extend unpaid parental leave (commencing 6 June 2023)
Prohibition of sexual harassment in the workplace
New provisions in the Fair Work Act 2009 (Cth) (FW Act) prohibiting sexual harassment in connection with work have commenced on 6 March 2023. The changes implement recommendations of the Respect@Work: Sexual Harassment National Inquiry Report (2020).
As these provisions appear in Part 3-5A of the FW Act which defines “employee” and “employer” as having their ordinary meanings, they apply to all employers in Australia, including those in the State IR system.
The FW Act changes follow amendments to the Sex Discrimination Act 1984 (Cth) (SD Act) which commenced on 12 December 2022 and impose a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation in the workplace. We note that from December 2023 the Australian Human Rights Commission will be empowered to monitor and assess compliance with this positive duty.
FW Act changes which commenced on 6 March 2023
From 6 March 2023:
- Sexual harassment in connection with work is expressly prohibited in the FW Act
- The Fair Work Commission (FWC) has expanded jurisdiction to deal with disputes about sexual harassment in connection with work.
The new prohibition extends to harassment of both existing and prospective employees. It also extends to contractors, work experience students and volunteers. Importantly, employers can be held vicariously liable for acts of an employee or agent contravening the new prohibition, where the employer has failed to take all reasonable steps to prevent the conduct.
The new dispute resolution process is established in addition to the existing ‘stop sexual harassment order’ jurisdiction of the FWC. Dispute applications can be made by an employee or their representative (such as a Union) as well as by the Fair Work Ombudsman (FWO) as the regulator.
The FWC can deal with the dispute through conciliation or mediation and will have the ability to make orders if agreement cannot be reached, including orders for compensation.
Local Governments should be aware that employees will also still have the option of lodging a complaint with the Australian Human Rights Commission or the Western Australian Equal Opportunity Commission.
Consequences of changes for Local Government employers
The changes to the SD Act and the FW Act represent a shift in legislative approach towards sexual harassment in the workplace, from one which is reactive and complaint-driven, to a focus on preventing sexual harassment from occurring.
To meet the positive duty imposed by the SD Act and minimise the risk of disputes under FWC’s expanded dispute jurisdiction, employers will need to be more proactive in this area.
We recommend that Local Governments:
- Review existing policies and complaint procedures to ensure they comply with the amended legislation. ER Subscribers can review our newly revised Discrimination, Harassment and Bullying Policy here
- Conduct regular training for all staff on what sexual harassment is, how to identify and respond to it
- Conduct additional training for managers and supervisors to ensure understanding of their role in preventing sexual harassment and managing complaints
- Regularly assess the risk of harm arising out of sexual harassment
- Monitor for incidences of sexual harassment, for example through workplace culture reviews, staff surveys, focus groups and exit interviews
- Ensure that employees are aware of and have access to internal support such as Employee Assistance Programs and external support resources available on the Respect@Work website below
- Attend our Breakfast seminar for ER Subscribers on Tuesday 23 May on Active Bystanders: Empowering Your Employees. Last chance to register here.
Resources
You can find resources to assist in understanding, preventing, and addressing sexual harassment in the workplace on the Government’s Respect@Work website (including good practice guides, workplace assessment tools, case studies, training materials).
The FWC has also launched a learning module on sexual harassment at work.
Changes to requests to extend unpaid parental leave
The National Employment Standards (NES) contained in the FW Act provide eligible employees with an entitlement to 12 months unpaid parental leave, and the right to request an extension for up to a further 12 months. The FWO overview of the entitlement is available here.
Unpaid parental leave provisions under the NES continue to extend to State system employers by the operation of s.744 of the FW Act. Local Governments should note that the entitlement to unpaid parental leave also arises under the Minimum Conditions of Employment Act 1993 (WA) (MCE Act) and where any MCE Act provisions are more favourable, they will prevail over the NES. The Department of Mines, Industry Regulation and Safety provides some guidance on parental leave in the State IR system here.
Currently an employer who receives a request for an extension beyond the initial 12 months:
- must provide a written response with their decision as soon as practicable and no later than within 21 days;
- must not refuse it except on reasonable business grounds and include details of the reasons for refusal in their written response; and
- must not refuse it unless the employee has been given reasonable opportunity to discuss the request.
From 6 June 2023 employers will have to follow new requirements when responding to an employee’s request for an extension and will have a positive obligation to consult with an employee before an extension request can be refused.
The changes will also give the FWC power to deal with disputes about requests for an extension of unpaid parental leave if they are unable to be resolved at the workplace level. The FWC will tackle disputes through conciliation, mediation, or, in exceptional circumstances, through mandatory arbitration. The FWC website will be updated in due course with guidance on how it will deal with these disputes, including relevant application forms.
The new regime for responding to requests for extension of unpaid parental leave can be summarised as follows:
When an employee makes a request, the employer can:
- agree to the request as stated; or
- discuss and agree with the employee on a different extension period.
The employer must put the outcome in writing to the employee within 21 days of the request.
If refusing a request, the employer must:
- respond in writing within 21 days;
- only refuse the request if:
- the employer has discussed and genuinely tried to reach an agreement with the employee about an extension, but failed to reach an agreement;
- the employer has considered the consequences of refusing the extension; and
- the refusal decision is made on reasonable business grounds.
The written response must:
- include details of the reasons for refusal, including the employer’s particular business grounds for refusing the request and how these grounds apply to the request;
- set out an alternative period of extension that the employer would be willing to agree to or state there is no such period; and
- include information about referring a dispute to the FWC.
Changes to the paid parental leave scheme
From 1 July 2023 changes will be made to the Government paid parental leave scheme. For a summary of these changes, please see the FWO website here.
Feedback sought on WALGA website
WALGA is currently redeveloping its website to better highlight the work of Local Governments and improve the user experience for members.
As part of the process, WALGA is keen to get input from members into how the new website should look and operate. This survey is anonymous, however your responses will be viewed by user researchers at ALYKA to compile a report for WALGA. We will then use this information when building the new website to help us improve and prioritise new features. It should take around 10 minutes to complete.
Take the survey: https://www.surveymonkey.com/r/6WCN9YF
Don't miss out on registering your place for WALGA ER's new and revised training courses!
- State Employment Law Essentials
- HR Toolkit for Managers
- Understanding and Applying the Local Government Industry Award 2020 (Industrial Agreement)
If you have any questions about this alert, please email WALGA Employee Relations or call 1300 366 956
