DECEMBER
Fair Work Act Amended – Secure Jobs, Better Pay Bill Becomes Law
On 6 December 2022, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Act) received Royal Assent and was made law after passing the Senate and the House of Representatives with significant amendments last week.
The Act implements substantial changes in the areas of enterprise bargaining, particularly in relation to multi-employer bargaining, the Better Off Overall Test and ‘zombie’ enterprise agreements, flexible work, fixed term contracts, and pay secrecy clauses in employment agreements. The Act also codifies the prohibition of sexual harassment in connection with work and imposes a positive duty on employers to take reasonable steps in preventing sexual harassment in the workplace.
This legislation represents a significant shift in the industrial relations landscape and employers will be required to take steps in bringing their current contracts, policies, and staff training in line with these changes. If you would like assistance, you can contact NRA Legal on 1800 572 679.
New Employer Obligations as Respect at Work Act Passes
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Act) has passed both Houses of Parliament and received Royal Assent.
The Act will implement a further 6 of the recommendations made in the Respect@Work report, perhaps most notably for employers introducing a positive duty to take all reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, including sexual harassment, from their workplaces.
Key changes
The Act amends the Sex Discrimination Act 1984 to prohibit conduct that makes workplaces hostile on the ground of sex. This covers situations where a person of one sex feels unwelcome or excluded by nature of the environment, even if the conduct is not directed towards any individual. It would likely include workplaces where obscene or pornographic materials are displayed, as well as workplaces where general sexual ‘banter’ or inappropriate jokes are commonplace.
Crucial for employers will be the obligation to take proactive steps to prevent sexual harassment, sex-based harassment, victimisation, and hostile workplaces on the ground of sex. This duty applies to the conduct of other employees as well as third parties, such as customers or suppliers. What measures are considered reasonable and proportionate will depend on the size, nature, and circumstances of each business. However, it is unlikely that just rolling out a policy and addressing complaints as they arise will be considered sufficient.
Additionally, the Act alters the law concerning sex-based harassment, no longer requiring conduct to be ‘seriously demeaning’. The threshold will be that the conduct was of a ‘demeaning’ nature, removing what was seen as an unnecessarily high bar.
What does this mean for employers?
Employers will need to conduct risk assessments that specifically consider the risks of sexual harassment and other forms of sex discrimination. Preventative measures should be put in place to address any risk areas identified, and the effectiveness of these measures should be monitored and reviewed on a regular basis.
Most of the provisions in the Act take effect immediately, however, the positive duty to eliminate sex discrimination will not be enforceable until 12 months following Royal Assent. Nevertheless, employers should not wait to act – in some cases, the cultural shifts required to meet the positive duty will take some time, and actions taken now will reap rewards in 12 months' time.
There are several ways NRA Legal can assist you in meeting your new obligations, from conducting a sexual harassment audit for your business to reviewing your current policies and procedures and providing tailored training to your employees. Contact us on 1800 500 604 to find out more.
Additionally, NRA Legal created an industry-leading Guide to Sexual Harassment Prevention in Retail and Food Service Environments which launched this week.
Potential jail time looms for Victorian business owner as underpayments prosecuted
The Wage Inspectorate Victoria (WIV) has laid its first criminal wage theft charges against Rehmat & Mehar Pty Ltd (The Macedon Lounge) and its owner for allegedly withholding $7,000 in wages, penalties, and superannuation from four former employees in 2021.
The wage theft laws took effect in Victoria on 1 July 2021, making it a criminal offence for Victorian employers to dishonestly underpay their workers or withhold their entitlements. Under the Wage Theft Act 2020 (Vic), companies face fines of more than $1,000,000.00, while individuals can face up to 10 years of jail time.
This prosecution in Victoria precedes the expected criminalisation of wage theft at a federal level in 2023. If you have concerns about wage compliance, it is important to take steps to review rostering and payroll practices. Please contact us for a confidential discussion.
Pre-shift work counts as time worked
Aldi is facing significant penalties for underpaying employees up to $10 million after the Federal Circuit and Family Court found that pre-shift work required by the supermarket giant did in fact constitute work.
Shop, Distributive and Allied Employees Association (SDA) alleged, that since August 2018, Aldi had been directing their warehouse employees to clock in 15 minutes prior to their rostered and paid start time to undertake several tasks such as collecting equipment and performing safety checks.
Aldi disputed these claims but conceded that it did expect employees to complete such tasks prior to their rostered start time and that disciplinary action would ensue if they failed to do so.
Judge Doug Humphreys stated that the tasks constituted work and “cannot be characterised as private activity in that they do not involve any activities that are of the benefit to the employee, such as storing personal effects, putting on uniforms or PPE” and as such, “the time taken to perform the pre-shift tasks is liable for payment by the employer”.
This is a timely reminder to ensure that employees are being adequately remunerated for any tasks performed, that benefit the business, prior to their rostered start time. For advice on rostering and payroll compliance, please call 1800 572 679 to speak with one of the team.
‘Zombie’ enterprise agreements set to expire
With the passing of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, a 12-month timer has begun on all ‘zombie’ enterprise agreements.
What is a ‘zombie’ agreement?
A zombie agreement is a coverall term that refers to agreement-based transitional instruments, such as workplace agreements or workplace determinations made under the Workplace Relations Act 1996. Most commonly, these are enterprise agreements which were made prior to 2009 and have long aged and passed their nominal expiry dates (hence the term ‘zombie’). Given these agreements were made prior to the Fair Work Act 2009, they did not need to meet the ‘better off overall test’ and apply to the exclusion of modern awards.
What are the changes?
Under the new amendments, agreement-based transitional instruments made under the Workplace Relations Act 1996, will automatically expire on 7 December 2023, meaning they will no longer apply. Employers covered by an affected agreement (Agreement) will need to ensure that:
• By 7 June 2023, you inform your employees:
o That they are covered by the Agreement;
o That on 7 December 2022, the sunset provisions came into effect; and
o That, unless an application is made to extend the Agreement’s termination date, the Agreement will terminate on 7 December 2023.
• Unless terminated earlier, from 7 December 2023, you are prepared to comply with your obligations under any applicable modern award or have sought to have a new enterprise agreement approved.
For support with terminating your zombie agreement or transitioning to pay and conditions aligned with a modern award, please contact us to book a free consultation.
Lack of formal warnings leads to reinstatement of sacked employee
An employee has been re-instated in his role as a tram driver with KDR Victoria Pty Ltd (Yarra Trams) and back paid $29,000.00 after he was dismissed for “horseplay”, with the Fair Work Commission (FWC) deeming the termination to be harsh and disproportionate.
It was alleged the tram driver had yelled at another colleague in the breakroom that he had taken a loaf of bread. Shortly after, the tram driver lifted his knee towards his colleague’s groin, without making contact. The two employees had been long-term friends and the tram driver insisted it was all a joke.
Yarra Trams proceeded to undertake an investigation for misconduct. In his response, the tram driver apologised and agreed to never engage in similar conduct again. However, after several meetings, Yarra Trams dismissed the driver.
While Deputy President Colman conceded the behaviour was inappropriate, he found Yarra Trams had not complied with the terms of its enterprise agreement, relating to the disciplinary process, and had failed to issue any formal warnings or advise the employee that his employment would be in jeopardy should he continue to engage in similar conduct. In addition, Deputy President Colman found that there had been an inconsistent approach to disciplinary action taken in response to other incidents of “horseplay” in the workplace.
Paid parental leave boosted
New parents will soon be eligible to receive 26 weeks of paid leave under an expansion of the federally funded Paid Parental Leave Scheme (Scheme), set to be the most significant boost to the Scheme since it was first introduced in 2011.
The Scheme, in its current form, provides 18 weeks of paid leave and two weeks of dad and partner pay – both paid at the minimum wage. However, from 1 July 2024, the Government will commence a phase-in approach, adding two additional weeks each year until the Scheme reaches its full 26 weeks.
The changes have been introduced to provide “more leave…and greater flexibility” to families. The extended paid parental leave is to be taken in blocks between periods of paid work and the Government will maintain a “use it or lose it” policy to encourage and facilitate more dads and partners to access the Scheme.
In light of his commitment to gender equality during the election campaign, Prime Minister Anthony Albanese hopes the Scheme’s boost will assist in closing the gender pay gap, increasing women’s workforce participation, and lifting productivity.
Past Briefs
The Brief – Feb 2024
The Brief – July 2023
