Employment, Discrimination and Equality Law 06 December 2023

A Year in Review – Key Employment, Discrimination and Equality law changes for 2023

There have been several significant changes to employment and discrimination legislation this year. [1] The changes highlight awakened community expectations and government focus to accelerate workplace gender equality and eliminate sexual harassment and other forms of discrimination.

There have been two tranches of Respect @ Work reforms since late 2021 in response to the Australian Human Rights Commission’s Inquiry into workplace sexual harassment. Significantly, new Respect @ Work laws extend protections to a broad range of workers offering better access to justice and more time to make complaints.

In addition to organisational liability, principals, and relevant individuals, including senior leaders face the prospect of personal liability under extended liability provisions. A federal duty on employers to proactively prevent sexual harassment and discrimination in the workplace is in force, coupled with new regulatory powers for the Australian Human Rights Commission to assess and enforce compliance which commences next week on 12 December 2023.

Changes to the Fair Work Act to prohibit sexual harassment and provide quicker, cheaper access to remedies facilitated by the Fair Work Commission are also now in effect. Other changes to the Fair Work Act to promote gender equality include expanded protections for people with attributes such as family violence, pregnancy, breastfeeding and intersex status, and extended flexibility and leave entitlements.

Public and private sector employers should also be aware of new regulatory obligations in force under gender equality laws to promote organisational transparency and accelerate efforts to close the gender pay gap. Relevantly, these changes mutually reinforce the Respect @ Work changes to ensure workplaces are mandated to better prevent and respond to sexual harassment and discrimination.

The table below provides a summary of these key changes with a focus on the Secure Jobs Better Pay Act, Respect @ Work legislation, and the relevant gender equality legislation. Employers are encouraged to audit current practices, processes, and policies to ensure they are meeting their legal and regulatory obligations in this new and evolving legal and regulatory landscape.

[1] The information in this article sets out in summary form only changes relevant to gender equality and discrimination matters. Please seek professional advice regarding other relevant industrial reforms.

How can Coulter Legal assist?

If you or your business require assistance or have any questions about this information please contact our Employment, Discrimination & Equality team: Alexandra Gronow 03 5273 5290 or agronow@coulterlegal.com.au.

All reasonable care is taken in the preparation of this article, to the extent allowed by legislation Coulter Legal accept no liability whatsoever for reliance on it. This article is not intended to be legal advice and has been prepared without considering your objectives, personal circumstances or needs. You should seek professional advice before acting on any material.

Secure Jobs Better Pay Act

What’s changed?	Effective date
The objectives of the Fair Work Act (FWA) have been changed to promote job security and gender equality.	7 December 2022
Pay secrecy is prohibited. Employers can no longer include pay secrecy clauses in employment contracts and other agreements or arrangements (whether written or unwritten).[2] Employees now have the workplace right to choose if they want to disclose pay information to others.	7 December 2022
New protected attributes for workers include breastfeeding, gender identity and intersex status. This means employers can’t disadvantage or take adverse action against employees for these prohibited reasons.	7 December 2022
Workplace sexual harassment expressly prohibited with the Fair Work Commission is now able to resolve sexual harassment complaints (in addition to existing powers to make stop sexual harassment orders).	6 March 2023
Expert panels of the Fair Work Commission created with the focus on pay equity and the community sector.	6 March 2023
Changes to the process for extending unpaid parental leave. The Commission has the power to deal with disputes about requests for extensions to unpaid parental leave. Increased access to flexible work arrangements for employees including those who are pregnant or who have immediate family members experiencing family or domestic violence.[3]	6 June 2023
Changes to fixed term contracts, limiting the length and application of these type of agreements in organisations. The Commission has the power to deal with disputes surrounding fixed term contracts. The Fixed Term Contract Information Statement is required to be provided by employers to employees who are engaged under a fixed term agreement.	6 December 2023

[2] Agreements or arrangements may include policies, procedures or employment expectations set by an employer with relation to pay secrecy.

[3] Under the new changes, an employer must also raise alternate flexible work options with the employee if the original request could not be fulfilled. This obligation may be imposed even if the employee did not ask about alternative arrangements.

Respect @ Work laws

What’s changed?	Effective date
More workers are now protected under the Sex Discrimination Act (SDA) including members of parliament, judges, public servants, and other workplace participants such as contractors and volunteers.	September 2021
New offence of sex-based harassment under the SDA which is an offence intended to capture demeaning conduct that does not rise to the threshold of sexual harassment.	September 2021
Individuals including senior leaders and executives can be personally liable for acts of sexual harassment of others under accessorial liability provisions.	September 2021
Time to make a complaint of discrimination or sexual harassment extended from 6 months to 24 months.	September 2021
The Fair Work Commission can make orders to stop sexual harassment like stop bullying orders.	September 2021
New entitlement for employees to take up to two days of paid compassionate leave in the event of a miscarriage. Casuals entitled to up to two days of unpaid leave.	September 2021
It is now unlawful to subject another person to a hostile workplace environment on the ground of sex.	13 December 2022
Representatives such as a trade union or human rights organisation can initiate proceedings in the courts on behalf of aggrieved individuals.	13 December 2022
Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth), Age Discrimination Act 2004 (Cth) and the Australian Human Rights Commission Act changed to clarify that victimising conduct can form the basis of a civil action for unlawful discrimination. Similar changes to the SDA were made in 2021.	13 December 2022
Test for a finding of sex-based harassment under the SDA has been amended to capture conduct that is demeaning and not ‘seriously demeaning’.	13 December 2022
All complaints of discrimination (including sexual harassment, sex discrimination, victimisation, age, disability or race discrimination) can now be made up to 24 months following alleged conduct, a time limit extension from 6 months.	13 December 2022
The new positive duty on employers to take reasonable and proportionate measures to eliminate, as far as possible sex discrimination, sexual harassment, sex-based harassment, and related acts of victimisation in the workplace becomes enforceable. This means employers are required to assess and implement holistic organisational prevention and response measures.	12 December 2023
New powers conferred on the Australian Human Rights Commission to regulate systemic discrimination and sexual harassment including powers to investigate, report and require enforceable undertakings.	12 December 2023

New Victorian Gender Equality Amendment Regulations 2023

The 2023 Gender Equality Amendment Regulations were released by the Victorian Government on 29 August 2023. The Regulations took effect on 30 September 2023.

What’s changed?	Important dates
Relevant defined entities are required to submit a progress report on Gender Equality Action Plans by 20 February 2024 (extended from October 2023)	Progress reports due 20 February 2024
Some regional libraries are now captured as defined entities, which will require such organisations to undertake their first gender equality audit and submit a Gender Action Plan by 30 June 2025.	Action Plans due in 2025

Workplace Gender Equality Act (WGEA) changes

The reforms apply to organisations already required to report annually to WGEA, which include private sector employers and now Commonwealth public sector organisations with 100 or more employees.

What’s changed?	Important dates
Employers must share their WGEA Executive Summary and Industry Benchmark Report with their Boards. Employers should consider the impact of this comparison data and what it means for compliance.	From November 2023
WGEA will publish private sector employer gender pay gaps.	From early 2024
Employers will be required to report workforce data on new indicators including, employee year of birth, primary workplace location, and CEO, head of business and casual manager remuneration. Employers also have updated mandatory reporting requirements on prevention and response to workplace sexual harassment and discrimination. Employers with 500 employees or more must have a policy or strategy for all six gender equality indicators.[4]	1 April 2024
WGEA will publish Commonwealth public sector gender pay gaps.	Late 2024/early 2025

[4] Indicators include gender composition of workforce and governing bodies; equal remuneration; employment and flexibility terms; consultation and sexual harassment and discrimination measures.