First up, the Bill proposes that employees will have a positive right to disclose (or not) information relating to their own remuneration structure or to ask others about their conditions of employment whether or not they work for the same employer. The Government anticipates that this will create transparency in the workplace which will eliminate pay bias between genders or other groups.
This is a significant change and for most, will require new employment contracts to be reviewed and adjusted to remove any mention of keeping salary information confidential, from your confidentiality clause. as it will be rendered ineffective.
For employees who have employment contracts with this inclusion, at this stage there is no need to reissue contracts, but employers should note that this particular requirement becomes void– essentially you won’t be able to hold employees to account for sharing this information if they wish to.
2.Prohibiting sexual harassment at work
It may surprise you to know that there is currently no express prohibition of sexual harassment under the Fair Work Act. Currently, the Fair Work Commission can receive and act on Stop Sexual Harassment orders but that’s where it ends. The new legislation provides for an express prohibition on sexual harassment in the workplace which will enable the Fair Work Ombudsman to investigate allegations through conciliation or mediation. Further, there is an allowance for recourse including compensation. It is likely that the new legislation will also require businesses with more than 50 employees to report on any internal sexual harassment complaints.
The Bill proposes that employers must take ‘reasonable and proportionate’ measures to eliminate sex discrimination, sexual harassment and victimisation in the workplace. This direction can be quite broad and may vary however employers may need to consider actions such as:
- The implementation and communication of policies and procedures that address the new requirements
- Completing comprehensive risk assessments and implementing corrective actions (similar to those you would do for high-risk work activities such as manual handling and machinery)
- Establish the collection of gender based data for reporting purposes.
- Conducting surveys (medium to large sized businesses) – this will involve asking questions around sexual harassment, incidences in the workplace training provided and consultation with your teams.
- Developing and implementing a sexual harassment strategy that covers risk management, tolerance, training and your review and evaluation processes.
- Establishment of training and education programs around sexual harassment
- Implementation of a complaint process that is confidential
The serious nature of sexual harassment, the proposals that are most likely to become enshrined in law and the obligation to provide a safe workplace, notwithstanding the fact that business leaders may be vicariously liable for the acts of their employees, necessitates that you seriously consider how you proceed. These are not trivial requirements of any business owner or leader, but they will support you in protecting your employees and your business. Please contact the HR Staff n’ Stuff team if you require additional support when it comes to initiating any of the above actions or for advice on what further you may need to do to be considered compliant.
3.Flexible working arrangements
The ability to apply for flexible working arrangements has been available to employees for some time but the proposed legislation tightens up the area around refusal. Currently, employers are permitted to deny requests on ‘reasonable business grounds’ with limited opportunity for employees to challenge the decision. The likely changes will continue to require any refusal to be provided in writing to the employee outlining the details of, and grounds for, the refusal.
The proposed changes will allow an employee to lodge a formal complaint with the Fairwork Commission if an agreement with their employer cannot be reached. Both parties may be required to enter into a conciliation and dispute resolution process, which would allow the Fair Work Commission to make binding decisions if conciliation between the employee and employer is unsuccessful. Please note however, that the request for flexible working arrangements is not an entitlement for all employees; specifically, the legislation requires flexible working arrangements to be considered for employees who:
- Are a parent or carer of a child who is school age or younger
- Are a carer
- Have a disability
- Are 55 years of age or older
- Are experiencing family & domestic violence
The flexible arrangements that are required to be considered are those that support the employee appropriately based on their eligibility requirement as outlined above. There is no legislation, nor are the proposed changes, meant to enable any employee to arbitrarily decide that they want to be able to work from home 3 days per week, for example.
However, flexible working arrangements are more prevalent than ever before and they are now a major consideration for prospective candidates when it comes to accepting or declining job offers, as well as retention of key talent. With the new requirements around refusal and the potential benefit to your business in securing and retaining talent, it’s in your best interests to seriously consider how you will manage flexible working arrangements where viable, and the opportunities it may present to your business and your employees.
Anything else?
Yes, there is more to this Bill than just the above three elements, but we wanted to highlight these key areas of reform now so that you can start considering how you might accommodate the changes and implement them into your business processes. With the Senate Inquiry into the Bill due to report on 17 November, it is possible that the legislation could pass as early as 1 December. We will, of course, be sharing more updates on what is likely to be one of the most substantial changes to Australia IR legislation that we’ve experienced for some time.
If you have concerns or questions as to how any of the changes might impact your business, or what you can do now to incorporate any of the likely changes, please speak to the HR Staff n'Stuff team now.
