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What Impact Will the Fair Work Legislation Amendment Act Have On Businesses?

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022, which received Royal Assent on December 6, 2022, introduces changes to several Acts that are pertinent to the Commission’s operations, including the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The amendments will be implemented in phases over a one-year period. What does this mean for business owners? Do you need ESG lawyers for this? Let’s find out.

What Are the Amendments Included?

The Day after the Royal Assent, the Fair Work Act’s objectives, including the modern awards objective and minimum wages objective, are among the changes brought by the Fair Work Legislation Amendment. Other amendments include:

  • equal remuneration
  • initiating bargaining
  • prohibiting pay secrecy
  • sunsetting of “zombie” agreements
  • termination of enterprise agreements
  • anti-discrimination and special measures
  • dealing with errors in enterprise agreements
  • requiring communications to be available in multiple languages.

Starting 6 March 2023, new sexual harassment laws for the workplace are also applied. You can find the details of other amendments here.

Implementing Measures to Prevent Sexual Harassment in the Workplace

The Fair Work Act update on sexual harassment laws aims to put a stop to sexual harassment in the workplace. This helps makes sure that everyone is protected from this unacceptable behaviour.

The new law applies to all workers, including employees, contractors, work experience students and volunteers. It also covers future workers and anyone conducting a business or undertaking. However, it won’t apply to any harassment that happened before 6th March 2023.

According to the new provisions, if an employee or agent engages in sexual harassment, the employer will be responsible, unless they can show that they took reasonable measures to prevent it. The Fair Work Commission (FWC) may issue a ‘stop sexual harassment order’ upon application by the aggrieved person or their industrial association. The application can only be made within 24 months of the incident and for incidents occurring after 6 March 2023. 

In addition to the existing power to issue ‘stop sexual harassment orders’, the FWC can now also use methods like conciliation, mediation and expressing an opinion to deal with sexual harassment disputes. If parties can’t come to a resolution, the FWC may also use arbitration if both parties agree. If so, the FWC can make an order for compensation or lost wages, or require someone to take reasonable steps to fix any loss or damage caused. The Fair Work Ombudsman will have the authority to prosecute offences.

Workers or groups alleging sexual harassment and their unions can make applications to the FWC.

Managing Sexual Harassment

Businesses should have taken measures to safeguard workers from sexual harassment to meet their duty of eliminating or lessening psychosocial hazards to health and safety as required under work health and safety laws. The recent amendments serve as a timely prompt to check if these measures are in place in your business and if not, take action promptly.

Sexual harassment refers to an unwelcome advance or request for sexual favours or other unwelcome sexual behaviour directed towards a person. The behaviour would be considered sexual harassment if a reasonable person would feel offended, intimidated or humiliated by it. It’s important to note that the alleged harasser’s intention is irrelevant in determining if it is sexual harassment. 

Sexual harassment may be a single occurrence and doesn’t have to be repeated. It is considered serious misconduct and may be a valid reason for dismissal in the course of employment. 

To manage sexual harassment in the workplace, it is important to:

  • Ensure a safe and secure physical and online working environment
  • Provide information, training, instruction and support to educate employees on preventing and addressing sexual harassment
  • Address unwanted or offensive behaviour as soon as it arises
  • Encourage employees to report any incidents of sexual harassment and have effective procedures in place for handling complaints.

The recent changes to the Fair Work Legislation Amendment Act highlight the need for businesses to prioritise workplace safety and take proactive measures to prevent sexual harassment. In this case, having ESG lawyers who can assist with developing and implementing robust policies and procedures that comply with the new provisions is beneficial.  If an incident does occur, ESG lawyers can provide guidance and representation in navigating the application process for a ‘stop sexual harassment order’ with the FWC. 

How Madison Marcus Can Help You

Are you concerned about protecting your business and employees from sexual harassment? At Madison Marcus, our team of experienced ESG lawyers can help you implement effective workplace policies and procedures to prevent and address sexual harassment. We understand that this issue is not only important from a legal perspective but also from an ethical and social responsibility standpoint. 

Our expertise in corporate governance and ESG-related matters, including modern slavery, enables us to provide tailored solutions to our clients’ needs. Our team of ESG lawyers has worked with publicly listed entities both in Australia and internationally, providing bespoke services on constantly evolving legal and regulatory issues. 

Contact us today to find out how we can assist you in promoting a safe and respectful workplace environment for all.


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