In a significant move towards fostering safer and more inclusive workplaces, the Australian Human Rights Commission (AHRC) has introduced a significant change – the Positive Duty. This legal obligation, introduced in the Sex Discrimination Act 1984 (Cth), mandates employers to proactively prevent unlawful conduct in their workplace.
Positive duty is an ongoing duty, it shifts the emphasis from a complaints-based model to one where employers must continuously assess and evaluate whether they are meeting the requirements of the duty. It requires a risk management process where businesses and business owners must continually identify, assess, control, and review the risks.
Irrespective of their size or resources, every organisation and business in Australia bound by the Sex Discrimination Act is now obliged to comply with the Positive Duty.
Understanding the Positive Duty
The Positive Duty, effective from 1 December 2022, brings about a significant paradigm shift in how businesses address issues related to sex discrimination and harassment in the workplace. There is now far greater emphasis on the health and safety obligations of employers more broadly, and this is really captured within the positive duty requirements. It compels organisations to take concrete actions to combat and prevent various forms of ‘relevant unlawful conduct,’ such as:
Discrimination on the grounds of sex within a work context.
Sexual harassment linked to work.
Sex-based harassment in work-related settings.
Hostile workplace environment based on sex.
Acts of victimisation related to these issues.
From 12 December 2023, the Australian Human Rights Commission will have authority to investigate and enforce compliance with the Positive Duty. To ensure your organisation adheres to this legislation, it’s imperative to be well-informed and prepared for the impending changes.
Guidelines for Compliance
To help organisations and businesses grasp the nuances of the Positive Duty and what it entails, the Commission has developed practical guidance materials. These guidelines encompass:
A clear definition of the Positive Duty.
The entities required to meet the Positive Duty.
The concept of taking ‘reasonable and proportionate measures.’
Insights into the enforcement mechanism of the Positive Duty.
There are also a number of other useful guides available to help businesses understand the various types of relevant unlawful conduct and steps that must be taken. The Commission has also created a specialised resource tailored to small business.
If you as a manager or business owner see something that is not right – you fundamentally have an obligation to address the issue. It is no longer acceptable to have the view that it will be fine – they will sort it out.
It has a flow on effect. By refusing to tolerate or ignore behaviours that do not meet acceptable standards, we contribute to creating a culture of accountability, respect, and excellence. It is important to remember that the standard you walk past is the standard you accept.
If you would like to know more and/or need any assistance in what steps to take moving forward, do not hesitate to get in touch on 1300 1 OUR HR.
Effective 30 June 2023, amendments to the National Employment Standard (NES) have introduced a new paradigm for unpaid parental leave. Previously, employees returning from parental leave who no longer wanted to continue with full time work commitments, even for a short period of time, were required to request flexible work arrangements or a part-time employment agreement with their employer in order to balance their parental responsibilities. This is no longer the case. Employees now have access to up to 100 days of their unpaid parental leave as flexible leave, creating a more flexible and accommodating environment for working parents.
Understanding Flexible Unpaid Parental Leave
Unlike traditional part-time or flexible work arrangements, the new flexible unpaid parental leave is an independent entitlement, meaning the employee will have the right to request this entitlement outside of other flexible arrangements that may be available to them.
Employees can choose to use up to 100 days of their unpaid parental leave entitlement flexibly, including as single days. For example, a parent who takes nine months of continuous parental leave from the date of birth or placement, could then return to work in their full-time role and utilise two days of flexible unpaid parental leave each week for the following nine months (a total of 78 flexible days) to work a part time week.
Employees also have more choice about when they take flexible unpaid parental leave. They can take the leave before, as well as after, any period of continuous unpaid parental leave they may take, and pregnant employees will also be able to access their flexible unpaid parental leave up to 6 weeks before the expected date of birth of their child.
How to take flexible leave?
To utilise this flexible leave, employees are required to provide 4 weeks’ notice prior to the intended flexible leave date to their employer. They must indicate the total number of days of flexible unpaid parental leave they intend to take and when they intend to take it. If this is not possible, the employee must give the notice as soon as practicable. Flexible leave can be taken at any time within the first two years from the child’s date of birth or placement.
As with flexible working requests, employees must put their requests for flexible unpaid parental leave in writing and an employer is required to respond to these requests within 21 days. The employer does have ground for refusing the request on reasonable business grounds, however it is important that the employer discuss the request with the employee and genuinely try to reach an agreement about the request. Employees will now have additional rights to dispute any refusal with the Fair Work Commission (FWC).
As an employer, it is vital to be aware of these changes and their implications to ensure compliance with the law and to foster a supportive workplace for your employees.
Here are few key things you can do following this update:
Policy Update: consider any changes that may be required to your internal processes to advise employees of the new changes available to them.
Manager Training: consider how you can upskill managers to understand how they will be considering and responding to requests.
Time scales: be aware of your obligations to respond to extension requests within 21 days.
Record Keeping: make notes of any requests made, including any discussions with the employee and decisions made, especially if you refuse a request.
If you need further assistance on navigating the recent legislative updates or would like help updating your parental leave policy/ internal processes do not hesitate to get in touch with us on 1300 1 OUR HR.
On 22nd June 2023, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 was passed. This has resulted in notable changes to employee rights under the Fair Work Act 2009. We previously posted covering changes to parental leave through the PWE Bill, however there are further changes which are as follows (please note the varying effective dates):
Protection to Migrant Workers – effective from 1 July 2023
There will be greater clarity that a migrant worker including temporary will remain entitled (at all times) to the protections contained in the Fair Work Act regarding wage and employment entitlements.
A breach of the Migration Act 1958 or an instrument made under it does not affect the validity of either entitlement.
Authorised Employee Deductions – effective from 30 December 2023
Employees will be able to authorise an employer to make valid salary deductions (ie. To a health fund) from payments to the employee where the deduction is principally for the employees benefit.
The reform allows Employees initial written deduction authorisation to specify that the amount of deduction can vary from time to time without needing to issue a new authorisation. Meaning only a single written authorisation is now needed.
Right to Superannuation – effective from 1 January 2024
The right to superannuation will be incorporated in the National Employment Standards (NES).
This means that unpaid or underpaid superannuation can be enforced under the Fair Work Act by more employees (as well as by an employee organisation or Fair Work).
It is important that employers are aware of these changes to legislation. If you would like to know more about the changes and/or need any assistance in what steps to take, do not hesitate to get in touch on 1300 1 OUR HR.
Essentially, a Zombie Agreement is an Enterprise Agreement made prior to 01 January 2010. They are agreements that were not subject to the ‘better off overall test’ against Modern Awards that are now in existence.
The Fair Work Legislation Amendment (Secure jobs, Better Pay) Act 2022 has amended the FW Act to automatically terminate agreement related instruments made prior to the commencement of the Fairwork Act 2009 and this means that any ‘zombie’ agreement will automatically be sunset on 7 December 2023 unless an application is made to extend or replace them.
If your business is impacted, you will need to do the following:
Employers who are covered by a ‘zombie’ agreement, must provide affected employees with written notice on or before 6 June 2023 informing them that:
They are covered by a ‘Zombie’ Agreement; and
The ‘Zombie’ Agreement will automatically terminate on 7 December 2023, unless a request is made to extend the agreement; and
The sunsetting process commenced on 7 December 2022.
Failing to issue a notice informing employees about the termination of their zombie agreement can attract fines of up to $16,500.
If you need any assistance with drafting a letter to employees or understanding the requirements for bargaining or new enterprise agreements, do not hesitate to get in touch on 1300 1 OUR HR (68 747).
Requests for Flexible Work Arrangements and Parental Leave are two of the eleven defined National Employment Standards (NES) that make up the minimum entitlements for employees in Australia.
These entitlements are also outlined in the Fair Work Information Statement that is issued to every new employee when they commence employment.
Other workplace instruments can’t provide for conditions that are less than the NES so it is important that businesses understand their duties and the requirements, particularly as and when changes are introduced.
Requests for Flexible Working Arrangements
There are several changes that will come into effect from 06 May 2023. These include:
Expansion of the circumstances in which an employee may request a flexible arrangement. Will include where an employee or a member of their immediate family or household, experiences family or domestic violence.
increase in an employer’s obligations when considering an employee’s request, with the aim of supporting or improving an employee’s access to flexible working arrangements, and
introduction of dispute resolution provisions that empower the FWC to make orders where an employer refuses an employee’s request, including:
whether the employer has reasonable business grounds to refuse the request, or
where the employer has not responded to the request within the required 21 days
There are changes to unpaid parental leave that come into effect from 06 June 2023. These include:
New rules apply to employers who intend to reject an application from an employee to extend their unpaid 01 July 2023. parental leave beyond 12 months. Employees will also be able to appeal to the Fair Work Commission if they are unhappy with the outcome of their request.
There are changes to paid parental leave that come into effect from 01 July 2023. These include:
The existing maximum 18 weeks’ parental leave pay will be combined with the two weeks’ father and partner pay to provide a single 20-week scheme, which can be shared between parents.
The maximum parental leave one parent could receive is 18 weeks. For example, one parent could receive 18 weeks pay, and one parent 2 weeks’ pay, or both parents could receive 10 weeks pay each, etc.
Employees who are single at the time they claim will be able to receive the full 20 weeks’ parental leave pay.
Claimants will now be able to receive parental leave pay in multiple blocks, of at least a day at a time, up to two years from the birth or adoption of their child.
The means test for eligibility will be amended by introducing a $350,000 per annum family income test. This will mean that there is no requirement for the claimant to meet the individual income test.
It is really important that if you have policies already in place that you update these to ensure they reflects the appropriate requirements and that they clearly outline both the employee and employer obligations.
If you need any assistance drafting policies or adjusting existing policies to conform to the new requirements, do not hesitate to get in touch on 1300 1 OUR HR (68 747)