Ignorance is no defence for employment law wrongdoing
There’s been a lot going on in employment law, especially in areas of sexual harassment, domestic violence leave and pay secrecy. If you’re responsible for teams and workplace matters and you get things wrong, ignorance is no defence and you, and your company, could be slapped with a very significant fine.
Not being conversant with the law is not an excuse to avoid your responsibilities. What makes it even harder on small business owners is the level of change that has been introduced into employment law over time, making it tough to stay across all the changes. So, we thought a brief overview of the key changes might help.
SEXUAL HARASSMENT
The Sex Discrimination Act and Fair Work Act have been changed to create a much more comprehensive framework around an everyone’s obligations to stamp out sexual harassment. Employees can now make application to the Fair Work Commission (FWC) for orders to stop sexual harassment in connection with their work. Complainants also have new avenues for claiming compensation and penalties for workplace related sexual harassment.
It is not enough to react to complaints. Employers, including small business owners have a duty to eliminate sexual harassment. That means reasonable and practical steps must be taken, including implementation of policies, awareness training, conducting risk assessments and providing transparent reporting. You are also required to put a stop to offensive or humiliating behaviours such as sexually charged jokes and banter, inappropriate references to others and displaying sexual material.
Complaints can and do result in the business facing a fine of up to $66,000, while business owners can be fined up to $13,000 as an accessory.
PAY SECRECY
Pay secrecy can’t be enforced. New employees have the right to disclose pay information in their workplace, including wage or salary rates, working hours, commission rates, bonus criteria (including key performance indicators – KPIs) and any fringe benefits such as motor vehicles. This is in direct contrast to most existing employment agreements that often prevent disclosure of pay and conditions to anyone except a professional advisor. Employers who enter into employment contracts that have pay secrecy terms in them could face penalties
The Government’s position is that secrecy does not promote equality or openness and can lead to disparity, especially gender disparity, and dispute. Opponents fear sharing this information could lead to disputes or workplace unrest if individuals attempt to weigh up their worth against others.
Pay secrecy clauses in new contracts will be prohibited from 7 June 2023, while any existing provisions will continue. Although be aware even a small unrelated change may be enough to make it a “new” agreement and void the pay secrecy clause.
ALTERNATIVE AND FLEXIBLE WORKING ARRANGEMENTS
Employees can request flexible work arrangements if they’ve worked with the same employer for at least 12 months and they:
- are the parent, or have responsibility for the care, of a child who is school aged or younger.
- are a carer (under the Carer Recognition Act 2010)
- have a disability.
- are 55 or older.
- are pregnant.
- are experiencing family and domestic violence, or
- provide care or support to an immediate family or household member who is experiencing family and domestic violence.
Casual employees can request flexible work arrangements if:
- they meet one of the above criteria (such as having a disability, being a carer or pregnant), have been working for the same employer regularly and systematically for at least 12 months, and
- there’s a reasonable expectation of continuing work with the employer on a regular and systematic basis.
Flexible working arrangements could include hours of work such as changes to start and finish times, patterns of work such as split shifts or job sharing, or locations of work – for example, working from home.
Employees need to follow certain rules when requesting flexible working arrangements. The request must be in writing, explain what changes are being asked for, and explain the reasons for the requested change.
Employers also need to follow certain rules when responding and must respond within 21 days to these requests.
Paid Family and Domestic Violence Leave
From 1 February 2023, employees (including part time and casual employees) can now access 10 days of paid family and domestic violence leave in a 12 month period at their full pay rate.
For small business employers (with less than 15 employees) the change will take effect from 1 August 2023.
This requirement replaces the current entitlement to 5 days of unpaid family and domestic violence leave under the National Employment Standards. Whilst the full amount is immediately available, it does not accumulate from year to year. The entitlement will renew on the anniversary of employment for existing employees.
It’s also important to note, there are rules about how information about family and domestic violence leave must be reported on pay slips.
Clarifying the Better Off Over all Test (BOOT) and Small Claims Increase
The amendments that started on 6 June 2023 provide employers with greater certainty about how the BOOT is applied, while ensuring that employees are protected by appropriate safeguards and will not be worse off.
The intention of the BOOT is to ensure each employee covered by an enterprise agreement is better off overall when compared to their relevant modern award.
The amendments provide employers with greater certainty about how the BOOT is applied, while ensuring that employees are protected by appropriate safeguards and will not be worse off.
Small Claims
On 1 July 2023, the jurisdictional limit for small claims proceedings under the Fair Work Act 2009 (Cth) (FW Act) increased from $20,000 to $100,000
The entitlements being claimed need to be covered by Australian workplace laws. This can include minimum wages, penalties, allowances, leave and other entitlements from the National Employment Standards, an award or enterprise agreement.
Next steps
Employment law is extremely complex and change always manages to bring new complications. The three matters raised here could be the tip of the iceberg for small business owners. Remember, ignorance isn’t a defence, so you will need to get on the front foot to ensure you meet all legislative requirements, not just those recently announced.
In my experience, leaving workplace issues to fester or failing to act at all, usually results in a blow up at the worst possible time that can quickly attract adverse publicity, take longer to resolve and cost a lot more than it should.
Proactive action starts with a review of your employment policies, assuming you have policies, for each of these issues. This will reveal shortfalls but may not indicate exactly what actions are needed.
The point is, workplace issues can and do, adversely affect business success and in the mining and resources industry where employee cohorts can be large, there can be a lot at stake legally, financially and reputationally – you’ll need qualified advice.
As a lawyer specialising in employment law, I’d be pleased to put my hand up to help you. For more information, please contact Robert Lamb, 07 3220 144 0418757458 or robert@hillhouse.com.au