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Recent changes to workplace laws brought in by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 highlight the requirement to ensure safe and fair workplaces, free from harassment and discrimination, and promote equal remuneration for work of equal or comparable value. The changes give the Fair Work Commission new and increased powers in relation to sexual harassment and discrimination complaints. The implications for employers in relation to sexual harassment, Anti-discrimination and special measures, Equal remuneration are explored in this article.

Sexual harassment

From 6 March 2023, new amendments expressly prohibit sexual harassment in the workplace and in connection with work extending to all workers. A breach can result in claims and civil penalties.

Sexual harassment is already prohibited at work but the amendments to the Fair Work Act (Act) include a vicarious liability provision (modelled on the Sex Discrimination Act 1984), which means that an employer will also be liable, in addition to the individual perpetrator or perpetrators, when there is sexual harassment and the employer did not take all reasonable steps to prevent the relevant sexual harassment.

Also, a specialised dispute resolution process and jurisdiction to make stop sexual harassment orders been introduced in the Fair Work Commission (Commission).

Unlike existing provisions, the amendments apply throughout Australia because they give effect to certain international conventions. The new provisions apply with and do not reduce or alter State and Territory anti-discrimination or work health safety laws.

The term ”worker” has the same meaning as in the Work Health and Safety Act, and includes an individual who performs work in any capacity, including as an employee, contractor, subcontractor, outworker, apprentice, trainee, student gaining work experience or a volunteer.

The amendments expand and clarify that a worker cannot sexually harass another worker, where the harassment occurs in connection with the victim being:

(a)       a worker or prospective worker in a business or undertaking; or

(b)       a person conducting a business or undertaking;

However sexual harassment against third parties, such as a worker against a customer, will remain exclusively regulated by anti-discrimination laws.

The new dispute resolution process for sexual harassment is based on the current process that applies to dismissal-related general protections claims. Proceedings will be commenced in the Commission and then, if necessary, proceed to the to the Federal Court or the Federal Circuit and Family Court.

The previous stop sexual harassment order provisions have been repealed and replaced with the new “combined” stop sexual harassment jurisdiction.

The Commission will be able to deal with sexual harassment disputes by mediation and conciliation or by making a “stop sexual harassment order”.  Civils penalties apply if a stop sexual harassment order is breached.

Additionally, the Commission must conduct any conferences in private, as a protection for victims, survivors and witnesses.

Applications can be made jointly by multiple aggrieved persons, as well as by a union, as opposed to a single individual.

The Commission can deal with multiple parties together if it is appropriate– for example, where there is a common perpetrator or principal or work location of where the sexual harassment has occurred, from a practical perspective.

A person can make a single application seeking to stop sexual harassment and later seek remedy for past harm caused by sexual harassment but is not otherwise able to double-dip by obtaining multiple remedies for the same conduct under the Act, or other legislation

The Fair Work Ombudsman has powers to investigate and bring civil penalty proceedings against employers or individuals for contraventions of the prohibition on sexual harassment in the workplace, either proactively or in response to a complaint.

Recommended immediate steps for employers to implement       

There will probably be an increase in action taken to remediate sexual harassment, because

• unions can bring sexual harassment disputes on behalf of workers;

• FWO has additional powers to investigate and bring civil penalty proceedings; and

• workers can bring joint applications.

To mitigate and eliminate sexual harassment in the workplace, employers must review and update their discrimination and harassment policies, and their procedures to ensure that they

• allow grievances, disputes or concerns to be raised; and

• assist in resolving grievances or disputes, including investigation processes,

particularly as the Commission must have regard to these matters when considering an application for a “stop sexual harassment” order;

As well as having policies and procedures, it is important for employers to develop discrimination and harassment training, which must be regularly provided to “workers” (annually) and keep records of attendance, to ensure workers are aware of their discrimination and harassment obligations and possible consequences

Employers should also review their workplace environment and culture and respond to any risks or incidents. This should include undertaking a specific sexual harassment risk assessment and implementing appropriate measures in response to any risks identified.

Anti-discrimination and special measures

Three additional protected attributes have been included into the anti-discrimination provisions of the FW Act being: breastfeeding, gender identity and intersex status.

These are now included as discriminatory terms that must not be included in a modern award or enterprise agreement and as reasons for unlawful termination of employment

Other changes, which also come into effect on 6 March 2023, include

• making gender equity an objective of the Act to guide the Commission in exercising its powers, particularly in relation to award-making and wage-setting;

• includes special measures to achieve equality as permitted matters that may be included in an enterprise agreement, IF it has the purpose of achieving substantive equality for employees or perspective employees who have a particular attribute or combination of attributes (for example a term as the purpose of achieving substantial equality for employees who are female and have a physical or mental disability) AND a reasonable person would consider the term is necessary in order to achieve substandard quality)

Also unlike the existing provisions, the amendments apply throughout Australia, including to non-national system employers, because they give effect to certain international conventions

Equal remuneration

The Commission may now make orders to address unequal pay and undervalued work where it is satisfied there is not equal remuneration for work of equal or comparable value.

There are new powers, requirements and guidance for the Commission in considering equal remuneration and work value cases, designed to help close the gap between average male and female earnings.

Changes to the modern awards objective and the minimum wage objective place a greater emphasis on eliminating gender-based undervaluation of work.

The Commission could previously determine a wage floor for work of equal or comparable value and make an Equal Remuneration Order, varying modern award minimum wages, if satisfied the order was justified because of:

• the nature of the work;

• the level of skill or responsibility involved in doing the work; or

• the conditions under which the work is done.

Although Commission has used to the previous ERO power to award significant pay increases to workers in the female-dominated social and community services sector, in 2015 the Commission reinterpreted the existing provisions to mean that EROs for a group of (mostly) female workers could only be made where it could be shown they are earning less than a “comparator” group of mostly male employees.

The Amendments remove the need to find a male comparator, or comparator group, and clarify that sex discrimination is not a necessary prerequisite to make an ERO.

Also section 157 has been amended to confirm that any Commission reconsideration of award rates on work value grounds must be “free of assumptions based on gender” and “include consideration of whether historically the work has been undervalued because of assumptions based on gender”.

An employee, an employer, or the Sex Discrimination Commissioner can still make an application for an Equal Remuneration Order. However the Commission can now make determinations on its own, a change designed to give more flexibility to order pay increases in relevant industries, for example by responding to pay equity findings reached in existing matters.

The Commission will be obliged to make an ERO if it is satisfied that remuneration is unequal.

The Commission have plans to introduce new expert panels:

• Pay Equity Expert Panel, dealing with gender pay equity or anti-discrimination

• Care and Community Sector Expert Panel, expected to deal with the aged care, early childhood education and care, and disability care sectors.

They have been created within the Commission to ensure appropriate expertise to better assess pay and conditions and make ERO for relevant workers and to tackle low pay and conditions in the female dominated care sector to help attract and retain workers.

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Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 - how will the changes affect your organisation, and when exactly will they come into effect?

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Our professional CER team are here to help you understand your obligations and ensure that you have sufficient procedures and processes in place. Contact enquiry@cer.catholic.org.au.