Employers who do not take active steps to prevent sexual harassment in the workplace may face claims and civil penalties following new industrial relations laws.

The Respect@Work laws represented the new Federal Government’s first reforms in industrial relations since the election. The changes specifically target sexual harassment in the workplace.
Following MEA’s industry webinar held in January, these are some of the key issues relevant to electrical contractors and small businesses.

What are the Respect@Work reforms?

The reforms expand the way in which sexual harassment matters can be handled by the Fair Work Commission (FWC) and the federal courts.
Under the Act, sexual harassment in the workplace is expressly prohibited, and a breach of this prohibition can result in claims and civil penalties.
One of the most notable changes is the introduction of a ‘positive duty’ for employers to take reasonable and proportionate measures to eliminate unlawful sexual harassment.
This means most sexual harassment risk management practices will have to be significantly increased, and employers will need to take active steps, including training and policy implementation, to meet this ‘positive duty’.

Who do the new Respect@Work laws cover?

It is not just direct employees covered under the laws, but any ‘worker’. The term worker has a broader definition than just employees and includes:

• employees,
• contractors,
• subcontractors,
• apprentices and trainees,
• students and/or volunteers,
• prospective workers,
• and third parties, such as clients and customers.

Workers, prospective workers, and persons conducting a business or undertaking will each be able to seek remedies under the Fair Work Act.

What do I need to do as an employer to comply with the new Respect@Work laws?

The amendments include a provision that means an aggrieved person can seek remedy from their employer in addition to the perpetrator.
Every employer will need to demonstrate that they have taken all reasonable steps to prevent sexual harassment. If a business is found to have failed to take reasonable steps to prevent workplace sexual harassment, it may face enforcement action.
Employers should be able to readily produce records around sexual harassment training, policies and other relevant documents relating to workers, much like they do in safety investigations.
The Fair Work Ombudsman (FWO) will be able to compel the production of documents and records or the examination of individuals. If the complaint is sustained, the FWO can take enforcement actions such as compliance notices, enforceable undertakings or litigation seeking civil penalties and/or compensation.

Changes to enterprise agreements
The laws also include changes to enterprise agreements which may have major impacts that could affect existing agreements and future bargaining.
This includes changes to the procedural requirements for approval of an agreement – where staff vote on the deal – as well as rules around unilateral terminations and the better off overall test (BOOT).

Terminating an EBA
Unilaterally terminating an enterprise agreement that has passed its nominal expiry date will require additional steps. The FWC will need to be satisfied of one of the following before terminating an existing agreement:

• the continued operation of the agreement would be unfair to the employees
• the agreement does not and is not likely to cover any employees; or
• the continued operation of the agreement would pose a significant threat to the viability of the business, terminating the agreement would reduce the risk of terminations, and the employer gives a guarantee that it will preserve termination entitlements under the agreement.

BOOT
There are changes to the better off overall test (BOOT), which requires the FWC to undertake the BOOT as a global assessment, instead of a line-by-line comparison. The FWC also only needs to apply the BOOT to reasonably foreseeable patterns or types of work under the agreement, reducing the risk of a hypothetical scenario bringing down the entire agreement.
A new pathway for reconsideration of the application of the BOOT has also been added. This is to ensure that new employees who are engaged after an agreement has already been assessed for BOOT compliance can apply for reconsideration. If they do so, the BOOT will be applied as at the time the original application for the agreement to be approved or varied was made. The BOOT changes begin on 6 June 2023.

Flexible work
Rights around ‘flexible work arrangements’ have been part of the Act since 2009. There will be new provisions empowering the FWC to resolve disputes regarding those requests which have been out of their reach.
Employers will now be required to meet with employees to discuss requests for flexible work arrangements and cannot refuse a request before discussing alternative working arrangements with employees.

What’s changed?
There are expanded circumstances to request flexible work arrangements to include situations where an employee, or a member of their immediate family or household experiences ‘family and domestic violence’.
An employer who receives a request must:

• meet with an employee to discuss their request; and
• if refusing the request, agree upon alternative changes to working arrangements and note the agreed changes in the employer’s written response; or
• if the employer still intends to refuse the request, outline the employer’s reasonable business grounds for refusal and address the following:

1. changes to the employee’s working arrangement that would accommodate (to any extent) the employee’s circumstances and that the employer would be willing to make; or
2. that there are no such changes the employer could make to accommodate the employee’s circumstances.

Where conciliation is unsuccessful, or ‘if urgency is required’, the FWC will have the power to ‘deal with a dispute as it considers appropriate’ or through mandatory arbitration.
If you have questions regarding how the new changes to the laws may impact your business, Master Electricians have unlimited access to the Employer Advice Hotline. Phone 1300 889 198 to speak directly to the experts.