Upcoming Workplace Law Changes affecting you
Read the below Fair Work Ombudsman summary information for key dates to make sure you are ready – for your attention.
Please note that this is not a complete list of upcoming workplace law changes. There may be other changes affecting Employers and Employees during this time not covered here.
NEW POSITIVE DUTY ON EMPLOYERS TO PREVENT WORKPLACE SEXUAL HARASSMENT, SEX DISCRIMINATION AND VICTIMISATION
Under the Sex Discrimination Act, organisations and businesses now have a positive duty to eliminate, as far as possible, the following unlawful behaviour from occurring:
– discrimination on the ground of sex in a work context
– sexual harassment in connection with work
– sex-based harassment in connection with work
– conduct creating a workplace environment that is hostile on the ground of sex
– related acts of victimisation.
The Australian Human Rights Commission (Commission) refers to this conduct as ‘relevant unlawful conduct’.
The new positive duty was introduced in December 2022. It imposes a legal obligation on organisations and businesses to take proactive and meaningful action to prevent relevant unlawful conduct from occurring in the workplace or in connection to work. Taking preventative action will help to create safe, respectful, and inclusive workplaces.
This important change requires organisations and businesses to shift their focus to actively prevent workplace sexual harassment, sex discrimination and other relevant unlawful conduct, rather than responding only after it occurs.
Regardless of their size or resources, all organisations and businesses in Australia that have obligations under the Sex Discrimination Act must meet the positive duty. This includes sole traders and the self-employed, small, medium, and large businesses, and government.
The positive duty was a key recommendation of the Commission’s landmark Respect@Work Report, led by former Sex Discrimination Commissioner Kate Jenkins AO, published in March 2020.
The Commission has new powers to investigate and enforce compliance with the positive duty. These powers will commence in December 2023.
The Commission has developed practical guidance materials to help organisations and businesses to understand their responsibilities and the changes they may need to make to meet these new legal obligations.
Refer to the Commission link for information.
Employers should take a Measured Approach
Employers should take a measured approach when it comes to how they respond to complaints of sexual harassment or sex-based discrimination. This means ensuring the accused person’s right to natural justice and procedural fairness.
It is important that the evidence for substantiating these types of complaints needs to be strong.
Many unfair dismissal cases fail in the Fair Work Commission because procedural fairness has not been followed and compensation can be steep, not to mention the damage to the business’s reputation from such a public process.
If the Australian Human Rights Commission can see that an employer has responded to a complaint of sexual harassment or discrimination with a robust investigation, conducted in a timely and procedurally fair manner, taking into account all evidence, it will determine that the employer has met its responsibilities under the Act in terms of responding to complaints.
Of course, it should be remembered that the spirit of Positive Duty under the Act is around prevention rather than cure, so employers should still be doing everything possible to create safe and inclusive workplaces to avoid complaints of sexual harassment and sex-based discrimination.
DO YOU HAVE TO PAY SUPERANNUATION FOR CONTRACTORS?
If you pay contractors mainly for their labour, they are Employees for superannuation guarantee purposes. You may need to pay super to a fund for them.
It doesn’t matter if the contractor has an Australian Business Number (ABN).
If you enter into a contract with a company, trust or partnership, you do not have to pay super for the person they employ to do the work.
Refer to the ATO link for further information.
Please contact us if you have any queries or require assistance.