Family and Domestic Violence Leave Survey closes Friday, 1 October 2021

Published on:
Friday, 24 September, 2021
Employee Relations

Several parties (including the ACTU) have made submissions to the Family and Domestic Violence Leave Review to vary modern awards to include 10 days’ paid family and domestic violence leave (FDVL). Currently the NES contains an entitlement to five days’ unpaid FDVL leave.

Your feedback is very important to us as it will determine the advocacy position that WALGA should take in its submission to the Fair Work Commission on behalf of WA and NT Local Governments.

To complete the survey, please click here.

Respect at Work Act Changes Commence

We refer to our ER Alert 13/2021 on the introduction of legislative changes in response to the Federal Government’s Respect at Work Report.

The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect at Work Act) was passed by Federal Parliament on 2 September 2021 and came into effect on 11 September 2021 (except for the ‘Stop’ orders as noted below).  

Changes to the Fair Work Act 2009 (FW Act)

The changes to the FW Act include:

  • Employees may now seek a ‘stop’ order on the grounds of sexual harassment, similar to a stop bullying order. The sexual harassment ground for a stop order will come into effect on 11 November 2021.
  • The definition of ‘sexually harass’ will be the same definition contained in section 28A of the Sex Discrimination Act 1984. Under that definition a person sexually harasses another if they make an unwelcome sexual advance, make an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature when a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.  
  • A note has been added to section 387 of the FW Act that a valid reason for dismissal may include where an employee sexually harasses another person and does so in connection with their employment.
  • Section 104 of the FW Act has been amended to allow for compassionate leave to be taken when an employee or their partner has a miscarriage. This is paid leave, other than for casuals.

Changes to the Sex Discrimination Act 1984 (SD Act)

The Respect at Work Act changes means that the SD Act applies to a ‘state employee’ which includes employees of Local Governments and Regional Councils in WA and the NT. Other authorities that are controlled by Local Governments may also be covered. State public servants, members of State Parliament and their staff, and judicial officers are now also covered by the SD Act.

The SD Act has also been amended to clarify ‘harassment on the ground of sex’ in section 28AA of the SD Act. Harassment on the ground of sex includes unwelcome conduct of a seriously demeaning nature that offends, humiliates or intimidates a person. It is based on a test that a reasonable person in all the circumstances would anticipate that the person harassed would be offended, humiliated or intimidated.

Employers may be vicariously liable for acts of sexual harassment or harassment on the ground of sex unless they can establish that they took all reasonable steps to prevent the acts. In addition, individuals such as managers and executives may be personally liable for sexual harassment or sex-based harassment if they cause, instruct, induce, aid or permit someone else to engage in unlawful sexual harassment or sex-based harassment.

Local Governments should consider reviewing their policies and training in this area not only for workplace cultural reasons, but to manage industrial and legal risk.

If you have any questions about this alert, please email WALGA Employee Relations or call 1300 366 956.

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