Changes to Respect@Work start with a culture review
The 2023 Industrial Relation Reforms (IRR) should be high on the priority list for all workplaces. Not only is it the right thing to do, but employers who do not comply could also face legal consequences and fines.
The IRR is positive news. The aim is to make workplaces more fair and equitable, which will improve employee relations and sentiment while reducing the risk of disputes and claims. Organisations that embrace the reforms are more likely to attract and retain employees.
In this blog, we take a high-level look at the changes and how businesses can measure their success.
Sexual Harassment in the Workplace
The Federal Government’s Respect@Work report found sexual harassment pervasive in Australian workplaces.
- In response, sexual harassment is now defined as ‘serious misconduct’ in Fair Work Regulations amendment.
- Sexual harassment is now a valid reason for dismissal in determining whether the dismissal was harsh, unjust or unreasonable.
Employers have a positive duty to prevent discrimination, harassment and unlawful conduct by their employees or agents. Simply reacting to incidents after they occur is no longer sufficient.
Employers and Person Conducting a Business Undertaking (PCBUs) must take “reasonable and proportionate measures” to eliminate sex discrimination, including sexual harassment, as far as possible. These measures vary according to an employer’s particular circumstances, including the size and nature of the business, available resources and practicality and cost.
Subjecting another person to a hostile workplace environment based on sex is prohibited.
New provisions in the Sex Discrimination Act prohibit this conduct. The reasonable-person test applies to determine if the conduct is offensive, intimidating, or humiliating to a person based on their sex.
Factors to consider when determining if the conduct is unlawful:
- The seriousness of the conduct
- Whether the conduct was continuous or repetitive
- The role, influence or authority of the person engaging in the conduct
A hostile work environment can be created by various types of conduct, such as:
- Displaying sexually explicit or pornographic materials
- Making sexual comments or jokes
- Engaging in unwanted physical contact or advances
- Using derogatory or insulting language or slurs
- Making unwelcome sexual propositions or demands
- Singling out an employee for unwanted attention or criticism based on their sex
If they are severe or pervasive enough, any of these behaviours can create a hostile work environment and make an employee feel uncomfortable or intimidated based on their sex or gender.
Workers, prospective workers and PCBUs are protected from sexual harassment and can choose how to pursue their dispute.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 now includes a prohibition on sexual harassment.
It also establishes a new way for employees to deal with sexual harassment complaints. The Fair Work Commission has introduced a dispute resolution process, allowing them to deal with disputes through conciliation or mediation. Where a dispute cannot be resolved in this way, and the parties agree, the Commission can settle the dispute and make orders, including for compensation.
Employees will now have the choice to pursue their dispute through the Fair Work Commission, the Australian Human Rights Commission (AHRC) or applicable state and territory anti-discrimination processes.
The small claims limit also increases from $20,000 to $100,000. These changes come into effect on 6 March 2023.
The Commission has powers to monitor, assess and enforce compliance
Changes to the AHRC Act enable the Commission to:
- Monitor, assess, and enforce compliance with the new positive duty in the Sex Discrimination Act.
- Conduct inquiries, issue compliance notices, apply to the federal courts for an order to direct compliance and enter into enforceable undertakings.
- Inquire into systemic unlawful discrimination.
- Reasonably suspect non-compliance based on a range of information, including advice from other agencies, impacted individuals, and media reporting.
Overall, these amendments are aimed at addressing sexual harassment and other forms of unlawful discrimination in the workplace, making it easier for individuals to seek redress and promote compliance with the law.
Representative Actions
Additional changes enable representative bodies, such as unions, to be able to proceed to court. Organisations may face representative actions from unions and other representative bodies, as well as individual claims for sexual harassment under the amended Fair Work Act 2009.
New protected attributes under the Fair Work Act
Breastfeeding – includes the act of expressing milk; and includes an act of breastfeeding and breastfeeding over a period of time.
Example: An employer dismisses an employee because she was breastfeeding her child during a work-related Zoom meeting.
Gender identity – means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.
Example: A prospective employer decides not to employ an individual following an interview because the person discloses their intersex status.
Intersex status – means the status of having physical, hormonal or genetic features that are neither wholly female nor wholly male; or a combination of female and male; or neither female nor male.
Example: An employer discriminates if HR refuses to change internal employee records to recognise an employee’s preferred name or to use their preferred pronouns.
Aggrieved individuals will be able to file an application with the Fair Work Commission and benefit from a conciliation conference to resolve the matter. Existing avenues of complaint in State-based anti-discrimination tribunals are still available.
Flexible working arrangements
The Secure Jobs Better Pay Bill, effective 6 June 2023, will make it harder for employers to refuse a request. It will be extended to pregnant employees and employees who are themselves (or a member of their immediate family or household) experiencing family and domestic violence.:
Other changes
Ban of pay secrecy. Employees will have the right to share information about their pay and remuneration and ask others about theirs during employment and post-employment.
Fixed-term contracts will be capped at two years, with some exceptions.
Enterprise bargaining has many changes and can be found in detail on the Fair Work Commission website.
How can organisations minimise their risk of non-compliance?
- Review and update policies and procedures
- Collect and monitor data
- Provide appropriate support to employees
- Respond promptly and effectively to any reports or complaints of sex-based workplace issues, including sexual harassment
- Deliver training and education on a regular basis
- Create a culture that supports and values workplace diversity, inclusion, and respect.
Respect@Work starts with workplace culture
Organisations with a healthy culture experience better employee satisfaction and retention, fewer complaints and less conflict. In the last few months, I’ve had many organisations contact me ahead of these changes, concerned that they don’t have a baseline of their workplace culture.
They might have a feel or an idea but no facts. No data. Nothing concrete on which they can build, improve and measure.
We can help. Our workplace culture reviews include:
- Reviewing relevant documentation, including policies and procedures, codes of conduct, workplace incident reports, and grievances/complaints.
- Collecting information through surveys, focus groups and, if appropriate, confidential interviews.
- A written report that contains observations and recommendations and a guide for additional or ongoing support.
Organisations can benefit by using IRR as a catalyst for greater, embedded cultural change.
Get started today. Contact us at 02 8036 5558 or email: saranne@segalconflictsolutions.com.au.
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