Session 2 - Flexible work and sexual harassment procedural reforms

The Fair Work Amendment (Secure Jobs, Better Pay) Act 2022 has introduced some of the most significant changes to the Fair Work Act 2009 (Cth), since its commencement on 1 January 2010.

Two of those changes were discussed in the second of our Spotlight Series presentation considering flexible work and sexual harassment procedural reforms.

When it comes to flexible work, employers need to know that:

• Expanded scope for employees to apply for flexible arrangements under the NES to:
  • pregnant employees;
  • employees suffering family and domestic violence; and
  • employees provide care or support to an immediate family member or member of their household who is suffering family and domestic violence.

• Employers will no longer just be able to consider the request identify reasonable business grounds to refuse the request and notify the employee in writing of the refusal.
• In summary, before refusing a request, employers will have 21 days to:
  • discuss the request with the employee;
  • genuinely try to reach an agreement with the employee;
  • have regard to the consequences of a refusal for the employee;
  • ensure the refusal is on reasonable business grounds;
  • give the employee a written response.

• With the increased obligations on employers in respect to NES flexibility requests, it is prudent for employers to start thinking about implementing appropriate management processes.

When it comes to sexual harassment procedural reforms, employers need to know that:

• Employees, contractors and volunteers, or anyone seeking to be one, now have a new right to apply to the Fair Work Commission to deal with a sexual harassment dispute that has arisen in connection with their work.
• Persons generally (including customers for instance, so not just their employer and/or colleagues) are prohibited from sexually harassing workers. Unions can seek a remedy on behalf of their members.
• The FWC can grant stop sexual harassment orders in respect of ongoing harassment and/or arbitrate disputes about past harassment if the parties agree. If they don’t, past harassment disputes can be taken to the Federal courts.
• These rights are in addition to existing Federal avenues for redress via the AHRC and the Federal courts.
• They are also in addition to existing rights under State law, though there are restrictions on multiple proceedings.
• Unincorporated employers are covered and can be vicariously liable for the acts of their employees or agents unless they can prove they took all reasonable steps to prevent the conduct.
• Given the positive duty on employers to eliminate sexual harassment, now is the time to review policies, training and culture.