Latest news in the workplace

Secure Jobs, Better Pay legislation coming into effect

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Secure Jobs, Better Pay Bill) passed parliament on 2 December 2022 and was given royal assent on 6 December 2022.
The following key areas came into effect on 7 December 2023:

• the objects of the Fair Work Act 2009 (Cth) (FW Act) have been expanded to promote job security and gender equality;
• prohibiting pay secrecy – employees can disclose their remuneration or terms and conditions of their employment that are reasonably necessary to determine remuneration outcomes;
• changes to applications for the termination of enterprise agreements after the nominal expiry date;
• changes to initiating bargaining;
• Fair Work Commission (FWC) can deal with errors in enterprise agreements;
• anti-discrimination provisions extended to provide for breastfeeding, gender identity and intersex status;
• sunsetting of zombie agreements – sunset period will be 7 December 2023 with employers to comply with notice requirements by 7 June 2023; and
• extended powers to FWC in relation to equal remuneration orders.

Some key areas, yet to come into effect include:

• limiting the use of fixed term contracts;
• expanding the circumstances to request flexible work arrangements and giving the FWC power to regulate these disputes;
• simplifying the Better Off Overall Test (BOOT) to a global test;
• multi-employer bargaining and new streams to multi-employer bargaining including supported bargaining agreements, single interest employer authorisations;
• FWC extended powers to arbitrate enterprise agreements where bargaining has been protracted;
• allows protected industrial action to be taken in relation to multi-employer enterprise agreements (with some exceptions); and
• employee bargaining representatives will have the power to initiate bargaining.

We recommend that employers seek advice regarding risks and obligations for their businesses arising from these reforms.

Prohibition of sexual harassment

On 6 March 2023, the FW Act’s prohibition of sexual harassment in the workplace took effect, that prohibits a person from sexually harassing another person who is a worker, seeking to become a worker, or a person conducting a business or undertaking. Employers (and principals of contractors or other agents) will be exposed to compensation claims, and fines of up to $16,500 for individuals and $82,500 for companies per breach. These fines increase tenfold for serious contraventions.
This definitions under these laws are broader than what has previously been provided for under the discrimination provisions of the FW Act. Including that the prohibition will extend to all ‘workers’ not just employees, meaning it includes contractors, officers, and volunteers. Principals will be vicariously liable for the actions of any employee or agent that contravene the above prohibition, under s.527E(1) of the FW Act. Accordingly, businesses could be liable for the actions of an independent contractor.
We recommend that businesses urgently review their processes and procedures around preventing and responding to sexual harassment, particularly in light of the new positive obligation to take all reasonable steps to prevent sexual harassment occurring.

A change to the responsibilities of a HR manager was not a constructive dismissal

The FWC this week found a HR manager, who quit her job after her responsibilities were changed by her employer, was not forced to resign. Consequently, she was not entitled to compensation under the unfair dismissal provisions within section 386 of the FW Act. The FWC noted that changes to a reporting line did not constitute a constructive dismissal. There were no changes to her salary, work hours or her title. The only changes made were who the HR manager reported to.
The restructuring of the company and the HR manager’s role was necessary due to the needs of the business, and to address complaints made by the HR manager about her excessive workload. Commissioner Riordan found that Valley Healthcare had not directly or through any ‘course of conduct’, forced the HR manager to resign. Further, that the employer had a duty to take steps to alleviate the workload and reduce the HR manager’s duties, which it did.
The Commission flagged that although the managing director should have consulted with the HR manager before making a final decision, it was unlikely to have made a difference and the HR manager would likely not have accept the decision regardless of the level of consultation.
Ms Belinda Williams v Valley Healthcare Group Pty Ltd [2023] FWC 614 (15 March 2023)

Stop bullying order after body corporate taunts caretakers

Onsite caretakers successfully made a stop bullying application after they claimed they had been “living in misery” over the Christmas period because of unpaid invoices. This was the second application brought by the caretakers after the first resulted in a private conference determining preventative actions would be put in place after the worker had attempted suicide. These agreed preventative actions were not implemented.
The caretakers had sent a vast number of correspondence requesting payment, each becoming more desperate before stating they had been “living in misery” due to not having enough money to live on over the Christmas period. The email response by the body corporates treasurer sought to taunt and mock the caretaker for living in misery and payment was not made for another 12 days.
Whilst late payment as a result of poor planning may be considered reasonable management action, the email taunting and mocking the caretaker was inappropriate and it was reasonably foreseeable that it would result in distress and mental anguish.
Applications by E and J [2023] FWC 364 (14 February 2023)