30 Nov HR LAW NEWSLETTER – NOVEMBER 2022
Welcome to the November 2022 HR Law Newsletter. This month we discuss the Anti-Discrimination and Human Rights Legislation Amendment (Respect@Work) Act 2022, commencement dates of an employee’s entitlement to 10 days paid family and domestic violence leave, new Queensland codes of practice and recent modern award updates.
Respect@Work Act passes Parliament
The Federal Government’s Anti-Discrimination and Human Rights Legislation Amendment (Respect@Work) Act 2022 (“the Act”) has now passed both houses of parliament. Amongst several key changes to the Sex Discrimination Act 1984 (Cth), the Act places a positive duty on employers and persons conducting a business or undertaking (“PCBU”) to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment and victimisation in the workplace. A summary of the key changes the Act implements are:
- Positive Duty on employers or PCBUs: creates a positive duty on employers and PCBUs to take reasonable and proportionate measures to eliminate unlawful discrimination, including sexual harassment, discrimination on the grounds of sex (based on the sex of the person and not necessarily sexual in nature), hostile workplaces on the grounds of sex, as well as acts of victimisation because of making complaints or allegations. Employers and PCBUs are now required to proactively prevent the conduct from occurring, not just respond to conduct which has occurred. The Australian Human Rights Commission (“Commission”) will also be equipped with appropriate compliance powers to enforce the positive duty.
- Hostile work environment: protection for people from hostile workplace environments on the grounds of sex. This protection will not require that conduct is directed at a specific person but instead prohibits conduct that results in an offensive, intimidating and humiliating environment for people of one sex.
- Inquiries into systematic unlawful discrimination: the investigative and enforcement powers of the Commission are expanded to inquire into systemic unlawful discrimination. This function will enable the Commission to inquire into any matter that may relate to systemic unlawful discrimination or suspected unlawful discrimination, including conducting inquiries if it reasonably suspects non-compliance, providing recommendations, issuing compliance notices, entering into enforceable undertakings and applying to the Federal Court or Federal Circuit and Family Court of Australia for enforcement of compliance notices.
- Threshold for finding harassment on grounds of sex lowered: the previous definition of harassment required the alleged wrongdoer to have engaged in unwelcome conduct of a “seriously demeaning” nature. The new definition of harassment under section 28AA of the Sex Discrimination Act 1984 (Cth), requires that unwelcome conduct need only be of a “demeaning” nature.
- Public sector reporting to the Workplace Gender Equality Agency: theWorkplace Gender Equality Act 2012 (Cth) has been amended to require the Commonwealth public sector to report annually against six gender equality indicators to the Workplace Gender Equality Agency.
- Victimisation: clarifies that victimisation can be the basis for a civil action of unlawful discrimination as well as a criminal action under Commonwealth anti-discrimination laws, namely the Age Discrimination Act 2004 (Cth), the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975 (Cth). The Commission can only terminate the complaints if more than 24 months have passed since the alleged unlawful conduct took place.
The Act will be in force the day it is given Royal Assent, except for the Australian Human Rights Commission’s powers of enforcement and investigation, which will take effect 12 months from that date.
Employers and PCBUs should now prepare for this new positive duty by conducting risk assessments, reviewing and updating policies, providing training, revisiting complaints and grievance handling procedures as well as encouraging a workplace culture where employees are comfortable to speak up and report on any sexual misconduct. If you would like assistance in preparing for the significant changes to your workplace, contact the team at HR Law.
Did you know the Human Rights Commission has recently launched a Respect@ Work website designed to be a “one-stop-shop” resource to assist employers to prevent workplace sexual harassment and to help workers respond to workplace sexual harassment. You can access the website here: https://www.respectatwork.gov.au/
Commencement of entitlement to 10 days paid family and domestic violence leave
From next year, employees will be able to access 10 days of paid family and domestic violence leave in a 12-month period. This includes casual and part-time employees.
The entitlement to 10 days paid family and domestic violence leave will commence as follows:
The new entitlement will be available from:
- 1 February 2023, for employees of non-small business employers (with 15 or more employees on 1 February); and
- 1 August 2023, for employees of small business employers (with less than 15 employees on 1 February).
Now is the time for employers to check employment contracts, policies and procedures etc to ensure they are compliant for when these new changes come into effect.
You can access our previous article on this topic here: https://www.hrlaw.com.au/hr-law-newsletter-october-2022/
Preparing for Christmas and New Year shutdown
As we move into December, some businesses are preparing for the annual Christmas and New Year shutdown but for some employers, this can be the busiest operating time of the year. There are some important matters for employers to consider at this time of year.
Business Shut/Close Down
A business “shuts down” or “closes down” when it temporarily closes its operations during certain times of the year, for example, over the Christmas and the New Year period. Most Modern Awards contain provisions which allow employers to direct employees to take annual leave over periods of shut down provided certain obligations, such as notice requirements, are met. If an enterprise agreement applies, it may also contain provisions regarding shutdowns.
If you would like advice regarding whether you can direct your employees to take annual leave over a shutdown period and what the requirements are, please contact the team at HR Law.
As there are a number of public holidays coming up over the Christmas and New Year period, employers must remember that Modern Awards and enterprise agreements can provide entitlements for working public holidays, including:
- extra pay (such as penalty rates);
- agreeing to substitute a public holiday for another day;
- an extra day off or extra annual leave; and
- working minimum shift lengths on public holidays.
Even though a public holiday may fall on a day when the employee would normally work, an employee does not have to work. However, an employer can ask an employee to work on a public holiday, if the request is reasonable. An employee may refuse to work on reasonable grounds. Section 114 of the Fair Work Act 2009 (Cth) (“FW Act”) outlines what needs to be taken into account when deciding if a request to work is reasonable, including the employee’s personal circumstances (for example family responsibilities), the needs of the workplace, how much notice was given to the employee about working and the amount of notice the employee gives that they refuse to work.
Employers are reminded to check any applicable Modern Award and/or enterprise agreement for specific provisions regarding public holidays.
New Codes of Practice for Queensland workers
The Queensland Government has introduced two new codes of practice covering psychological wellbeing and silicosis prevention.
The Managing the Risk of Psychosocial Hazards at Work Code of Practice (“Psychosocial Code”) will commence on 1 April 2023. The Managing Respirable Crystalline Silica Dust Exposure in Construction and the Manufacturing of Construction Elements Code of Practice (“Silica Dust Code”) will commence on 1 May 2023. The Psychosocial Code and Silica Dust Code are approved codes under section 274 of the Work Health and Safety Act 2011 (“WHS Act”) and place a duty on persons conducting a business or undertaking. Section 26A of the WHS Act provides the following:
“26A Duty of persons conducting business or undertaking—codes of practice
A person conducting a business or undertaking must, if the Minister approves a code of practice for the purposes of this Act—
(a) comply with the code; or
(b) manage hazards and risks arising from the work carried out as part of the conduct of the business or undertaking in a way that is different to the code but provides a standard of health and safety that is equivalent to or higher than the standard required under the code.”
The Psychosocial Code addresses psychosocial health risks at work including:
- high and/or low job demands;
- poor support;
- remote or isolated work;
- violence and aggression;
- low reward and recognition;
- low role clarity;
- poor organisation justice;
- poor organisational change management;
- traumatic events; and
- poor workplace relationships including interpersonal conflict.
The Psychosocial Code offers practical guidance to employers and workers to assist to understand their rights and responsibilities and includes case studies, examples of psychosocial hazards and examples of control measures for psychosocial hazards.
The Silica Dust Code applies to all construction work as well as the manufacturing of construction elements and applies to “the manufacturing of elements for use in construction work, regardless of where the manufacturing is undertaken (i.e., not limited to the manufacturing of elements on a construction site)”.
The Silica Dust Code states that:
- Working with materials that contain crystalline silica can make (or generate) a dangerous dust called respirable crystalline silica (RCS).
- RCS can be generated when working with these materials, including tasks such as cutting, sawing, grinding, drilling, polishing, scabbling and crushing.
- Other tasks like dry sweeping or using compressed air can disturb settled dust containing RCS and make it airborne.
Like the Psychosocial Code, the Silica Dust Code provides practical guidance to employers and workers such as a “RCS dust control plan example” and “Controls table”.
These new codes of practice can be accessed here:
Recent Modern Award amendments
There have been some changes to Modern Awards including:
Childen’s Services Award 2010
An educational leader’s allowance for eligible employees covered by the Children’s Services Award 2010 (“CS Award”) how now been introduced. For those employees covered by the CS Award who perform the responsibilities of an educational leader (under Regulation 118 of the Education and Care Services National Regulations 2011) they will receive an allowance of $4,022.05 per year. This is equivalent to the educational leader allowance in the Educational Services (Teachers) Award 2020. Employees who perform these responsibilities for less than five days per week receive the allowance on a pro rata basis. The new allowance was effective from the first pay period starting on or after 1 November 2022.
Building and Construction General On-site Award 2020
The Building and Construction General On-site Award 2020 (“Building Award”) National Training Wage schedule (Schedule D) has been replaced with a new tailored schedule. Key changes to Schedule D include:
- adding minimum weekly rates for trainees, previously found in clause 19.10;
- deleting some training packages and adding others; and
- removing references to Wage level C, which has never applied in the Building Award.
You can access the full decisions for both modern award changes here:
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.