The new Fair Work laws in Australia you need to know about
Your workplace is changing. Well, more accurately, your workplace has to change. Because there’s a whole raft of legislation that’s been brought in recently, and you need to be across it. Here’s what you need to know – and you’re going to need to challenge your own preconceptions about running a workplace.
If you’ve been working for more than a year or two, you’ll have seen changes in the workplace. If you’re slightly longer in the tooth than others, you’ll have seen some seismic shifts. If you’ve been working for a decade or so, you’ll probably look back at a few things that happened now and again and think ‘erm… really?!’
The workplace is changing, and the recently introduced Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 means, as a boss, you need to be aware of a few things – because these aren’t just little alterations and tweaks.
“This is the biggest change in legislation since Fair Work was introduced in 2009,” says Natasha Hawker, Managing Director of Employee Matters.
“We just haven’t had this raft of changes for 15 years, and there’s a heap of new stuff that electrical contractors need to be aware of.”
Fair Work changes: Understanding sexual harassment
Look, we know the clichéd picture of a male boss slapping his secretary’s backside as she walks past, or a male employee gawping at a female colleague’s chest while recounting explicit tales from the weekend are just that – clichéd.
Those types of incidents did happen in the not-so-distant past, and while today’s workplaces are different to those of the 20th – and even early 21st – century, that doesn’t mean sexual harassment is solved.
Far from it. So take note.
“This has come off the back of the Sexual Harassment in the Workplace Report, which found that one in three Australians have been sexually harassed in the workplace in the past five years,” says Natasha.
“If you’d told me that was the stat from 20 years ago, or even 10 years ago, I’d have said, ‘Yeah, that’s about right’. But five years?”
Those statistics show there’s still a very real problem in the workplace, which this legislation is attempting to solve.
But what does sexual harassment in the workplace actually look like? After all, we need to know what constitutes it before we can stop it.
“As well as the obvious things we’d all consider sexual harassment, following or watching someone inappropriately – either in person or via technology – can be considered sexual harassment, as can inappropriate touching, for example hugging someone that doesn’t want to be hugged,” explains Natasha.
So, what do employers need to do? Everything possible to stop something happening, is the short answer!
“The Respect at Work legislation means every employer needs to do everything practical to avoid sexual harassment in the workplace,” she says.
“This needs to come from the top, so a leadership statement for both staff and clients saying we don’t condone sexual harassment in the workplace is a good place to start.
“You need to train people so they understand what sexual harassment is, and conduct a risk assessment to understand the risks employees are facing."
“For example, are you sending a female out to a worksite alone or after hours?”
By identifying potential threats and putting mitigations in place, you can reduce the likelihood of something happening, and avoid finding yourself in hot water.
“If sexual harassment or assault takes place and you haven’t done everything practically possible to prevent it, you’re on the hook,” says Natasha.
“A manager can be fined up to $19,000. The business is also liable per breach, up to $90,000.”
Of course, you need to cultivate a culture that encourages open communication, with employees knowing they’ll be listened to and taken seriously should they experience an incident that requires reporting.
“Sometimes, having that type of environment can mean an incident doesn’t escalate – a quiet word can be all that is required,” says Natasha.
How employers can help their employees’ mental health
Mental health in the workplace has been a huge talking point recently – in fact, between 2017-18 and 2020-21, mental health claims through workers’ compensation insurance increased by 36.9%, while McKinsey says 28% of Australian employees are at risk of burnout.
Factor in the impact of COVID-19, anxiety, anorexia, substance abuse, depression and other mental health conditions such as schizophrenia, and it’s no surprise People at Work legislation has been brought in to tackle a seriously growing problem.
Natasha says, “When we say burnout, we’re not just saying ‘I need a bit of a holiday’. This is when people have been burning the candle at both ends, blood pressure’s going sky high, they’re not sleeping, they’re self-medicating – all of that sort of stuff.
“I think we’re going to see more and more of these cases, so People at Work is a valuable resource in trying to identify psychosocial hazards.”
For employers, a good first port of call is the People at Work website, from which you can access surveys and resources to help you identify and address issues.
The types of things that may crop up include issues directly related to work – a boss continually contacting staff at night and expecting a response (this is where the ‘right to disconnect’ comes into play), being expected to do overtime without being paid (wage theft), as well as indirectly related issues such as financial stress.
The onus now is really on employers to take care of their employees.
“You’ve got people who are being worked to the bone at work, with employers trying to fight for their survival, and the employees also worried about whether they’re going to be able to pay their mortgage next week,” says Natasha.
“That is going to increase the risk of mental illness in your workplace, and what are you going to do about that? Do you have an EAP program? Do you have mental health first responders?”
These are all key components of building a healthy workplace – and employers that don’t address these issues are going to face difficulty, both in formal sanctions as well as employee attraction and retention.
Your role in tackling domestic and family violence
One in four women, and one in six men, are victims of domestic and family violence, and employers have to take a role in protecting people who are experiencing this.
“As soon as they start a new job, a victim can now request up to 10 days of domestic and family violence leave,” says Natasha.
“You can ask people for evidence, but the key thing here is, on the payslip, it has to say the person worked their regular hours."
“The reason for this is they may be using that leave to see a solicitor or make alternative living arrangements, for example, and it’s important to keep that information confidential, so their abusive partner doesn’t find out.”
Under this duty of care there is an onus on employers helping employees that are experiencing domestic violence, and while there is currently no directive for employers to get involved if you suspect an employee is a perpetrator, Natasha says it would be the responsible thing to do.
“The other aspect to this is that in an abusive relationship, the abuser will often come into the workplace – dropping in unexpectedly, bringing lunch, for example – meaning there’s a greater risk to your employees.
“If something kicks off and they’re carrying a knife, it could go horribly wrong very quickly.”
Other changes you need to know about
Other changes you need to be aware of include pay secrecy – employees can no longer be contractually obligated not to discuss their pay with other employees, it’s now their choice to do so.
In addition, people who are performing at the same level must be paid the same, regardless of experience.
The terms ‘primary’ and ‘secondary’ caregivers are now unacceptable – it’s simply caregivers, and the partner is now also entitled to 12 months unpaid parental leave when their partner gives birth (or an adopted baby arrives), which can be taken across the first two years. This can be taken in one continuous period, or flexibly, up to 100 days.
“As this doesn’t have to be taken in one chunk, it could be two months here, a month there, and as the employer you’ve got to cover that time out,” explains Natasha.
Next steps for employers to implement new Fair Work regs
So, the overriding message is this: employers have a load more responsibility to look after their employees, both professionally and, increasingly, personally.
It is a seismic change, so don’t underestimate it. Talk to experts, do the research and remember the new guidance is a minimum expectation – those companies that go above and beyond will be the ones that generate significant employee loyalty, and create the environments people want to work in.
Don’t forget the right to disconnect!
There’s been a load of talk about this one, so let’s do some myth-busting. First up, the right to disconnect absolutely does not mean you cannot contact employees out of hours, ever again.
What it does mean, however, is you can’t expect a response – which is fair enough.
There are no fines for this one – Fair Work will issue a stop notice – but regardless, the right to disconnect is just common sense and good business practice.
If it’s an absolute emergency, then common sense dictates you’d expect a response. If it’s not, then don’t.
Add a line on the bottom of your emails along the lines of ‘I’m emailing now because it suits me, I don’t expect a response out of working hours’.
Better still, schedule the email to send at 8am the next working day.
The big thread running through a few of these updates to legislation is this – people need to achieve balance, and as an employer, you’ve got to help them get there. If people are burned out because they’re answering emails until 10pm every night, or expected to work a couple of hours unpaid overtime every day, no one wins. They’re going to be wrecked, your business isn’t going to be the best culture-wise, and time off and insurance claims flow.
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