Warning: This article contains details about sexual harassment which may be upsetting for some readers. Reader discretion is advised.
May 2023 has once again seen the Fair Work Act 2009 (Cth) under scrutiny from the federal government with a new set of amendments being formally passed relating to Workplace Gender Equality. This however is not the end of the proposed changes with a further bill being tabled in parliament focusing on protecting worker entitlements. These amendments have very real consequences for employers in particular for employers with over 100 employees following the creation of the Workplace Gender Equality Agency.
In addition to these legislative changes the area of Employment Law has also seen some cases of note exploring whether swearing or criminal charges are sufficient grounds for a dismissal, and a sex discrimination claim relating to inequality of pay. A summary of these three cases can be found below under Significant Cases.
Legislative Changes and Announcements
Proposed changes to the Fair Work Act (Protecting Worker Entitlements)
The Fair Work Act has recently been the subject of significant amendments, which started taking effect from December 2022 with yet more amendments to take effect later this year. These changes were discussed in more detail in our article here.
In addition to these changes the Federal Government is proposing further changes (which are yet to be formally passed by parliament).
There are 4 major alterations being proposed:
- Added protections for Migrant Workers;
- Inclusion of Superannuation as a part of the National Employment Standards;
- An expansion of the circumstances when a deduction from a payment due to an employee can be authorised by that employee; and
- Changes to parental leave entitlements, to allow working parents to take up to 20 weeks of their entitlement “flexibly” (up from 6 weeks currently). Further, pregnant employees would be able to access their flexible parental leave up to 6 weeks before the expected birth date. Restrictions about concurrent parental leave will also be removed.
Look forward to a full exploration of these changes in a future update once the Bill is formally passed and given Royal Assent.
Workplace Gender Equality Amendment
This amendment has now formally passed Federal Parliament resulting in the establishment of the Workplace Gender Equality Agency (WGEA). The WGEA will publish aggregate data obtained from relevant employers in respect of the Gender Pay Gap.
The amendment also creates obligations on all organizations with over 100 employees. Specifically:
- That the organisation produces a report to WGEA outlining their gender pay gaps which will be publicly displayed on WGEA’s website.
- The CEO of each organisation will need to provide the organisation’s governing body a report from WGEA which will demonstrate how the organization performs in respect of gender pay equality when compared to the relevant industry.
We recommend conducting reviews into any pay discrepancies within the organisation for employees in the same or substantially the same position given that employees may opt to commence proceedings if they become aware of a discrepancy.
Austin Health v Tsikos  VSCA 82
Warren Power v Lyndons Pty Ltd T/A Lyndons  FWC 1060
Julian Strangio v Sydney Trains  FWC 730