New federal legislation in Australia aims to increase equity in the workplace, with changes to workplace laws around flexibility, parental leave, pay equity and sexual harassment, bullying and discrimination. Susie Ashworth summarises the main changes and lists relevant Government and Parlour resources.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and the Anti‑Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 were both passed in December 2022, with a number of areas of focus aiming to promote equity in the workplace. Elements from each Act are currently being rolled out throughout 2023 and into 2024. In March 2023, the Paid Parental Leave Amendment (Improvements for Families and Gender Equality) Bill 2022 (Cth) passed both Houses of Parliament, with changes to paid parental leave entitlements kicking in from 1 July 2023. Also in March 2023, Parliament passed the Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Bill 2023, which aims to drive transparency and accelerate action towards closing the gender pay gap.
Read on to learn about key changes and resources from government and Parlour.
The right to request flexible work was expanded in 2023, taking effect on 6 June. The Fair Work ombudsman website outlines the changes as follows:
The right to request flexible working arrangements will also now apply to:
- employees who are pregnant.
- employees, or a member of their immediate family or household, experiencing family and domestic violence (this now includes behaviours that are abusive or threatening). Also see our Domestic and Family Violence resources.
Those who already have the right to request flexible work include employees (other than casual employees) who have worked with the same employer for at least 12 months and:
- are the parent, or have responsibility for the care, of a child who is school aged or younger
- are a carer (under the Carer Recognition Act 2010)
- have a disability
- are 55 or older
- are experiencing violence from a member of the employee’s family, or
- provide care or support to a member of their household or immediate family who requires care or support because that person is experiencing violence from their family.
Employer obligations regarding flexible work requests
When an employee requests a flexible working arrangement, employers are now obligated to follow a process that includes discussion, negotiation and potential compromise before they can refuse a request. Employers need to deal with a request within a 21-day period. The Fair Work ombudsman website outlines the following process for employers, who are now obligated to:
- discuss the request with the employee
- make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances
- consider the consequences of refusal for the employee
- provide a written response that includes: an explanation of the reasonable business grounds for refusing the request and how these grounds apply to the request; other changes the employer is willing to make that would accommodate the employee’s circumstances or that says there aren’t any changes; and information about referring a dispute to the Fair Work Commission (the Commission).
If an employer and the employee have agreed to make changes to the employee’s working arrangements that are different to the employee’s request, the employer needs to confirm these agreed changes in writing within 21 days of the request.
Fair Work Commission
If the parties can’t reach an agreement about a potential flexible work arrangement, the Fair Work Commission will now be able to hear and make orders about disputes. An employee can escalate a case to the Commission if an employer doesn’t respond to a request within 21 days or if an employer refuses an employee’s request and the employee believes there is no reasonable business grounds to do so.
CPD Parlour Live videos
Flexibility – How and Why – Watch our Light at the End of the Tunnel session on the how and why of flexible work with Brian Clohessy, Head of People and Character at BVN, in conversation with Justine Clark and Alison Cleary.
Stepping Up on Flexibility – Watch this lively and open conversation with John Prentice of Woods Bagot, Dave Tordoff of Hayball and Emily Wombwell of SJB, as they discuss the potential and possibilities of flexible work in conversation with Justine Clark and Angelina Pillai.
Articles and documents
Parlour Guide to Equitable Practice – Flexibility (currently being updated) – This Guide looks at some of the benefits and challenges of working flexibly in architecture and identifies strategies to help these arrangements run smoothly.
“What is Flexibility and Why Does it Matter?” – How does flexibility work in practice, what are the benefits and challenges, what is its impact on equity, what is the business case for change and what are some of the types of flexible working?
“How to Create an Effective Flex Policy” – This article includes practical advice on developing and implementing a flex policy.
“Flex Case Studies” – How are practices embedding flexible work into their work cultures and everyday habits? BVN, Woods Bagot and Cox share their progress and experiences so far.
From 1 July 2023, the rules for government-funded parental leave have changed. The federal government’s revised paid parental leave scheme offers increased flexibility, with partnered couples with babies born or placed in their care after 1 July 2023 able to share caring responsibilities more easily between them. Paid Parental Leave is paid at the national minimum wage rate.
- The existing maximum 90 days (18 weeks) Parental Leave Pay (PPL) will be combined with the two weeks’ Dad and Partner Pay to provide a single 100-day (20-week) PPL scheme, to be shared between each parent. Note: to be eligible, employees must earn less than $156,647 per annum.
- Parents will be able to receive a maximum of 18 weeks’ parental leave pay each, and a maximum of 20 weeks’ parental leave pay between them. For example, one parent could take 18 weeks paid leave and one two weeks; or both parents could receive 10 weeks of paid parental leave.
- The means test for eligibility will be amended by introducing a $350,000 per annum family income test (indexed annually from 1 July 2024) under which claimants can qualify for parental leave pay if they do not meet the individual income test.
- Eligible employees who are single at the time they claim will be eligible for 20 weeks paid parental leave.
- The whole payment will be made flexible so that eligible employees can claim it in multiple blocks until the child turns two.
- The requirement to return to work to be eligible for the entitlement has been removed.
CPD Parlour Live videos
Parental Leave – Watch Light at the End of the Tunnel 36, as we discuss the what why and how of parental leave with Hari Pliambas from Lyons and Chi Melhem of Em Be Ce.
Stepping Up on Parental Leave – Watch Philip Vivian of Bates Smart, Zoë King of Cox and Richard Sucksmith of John Wardle Architects as they discuss the many ways in which excellent parental leave schemes can help improve equity, in conversation with Justine Clark and Monica Edwards.
Articles and documents
“What is Parental Leave and Why Does it Matter?” – Parental leave is much more than a short-term leave entitlement for working mothers. Good parental leave policies are applicable to all, helping create an equitable workplace that allows everyone to lead a balanced life, with time for families, and time to commit to projects, practice life and career. This article outlines the benefits and challenges of good parental leave policies, and some recommended strategies to implement before, during and after leave.
“How to Create a Good Parental Leave Policy” – A good Parental Leave Policy is essential to creating a workplace culture and policy environment that supports parents at all stages. This helps ensure that raising a family doesn’t derail or devalue the career of a talented and valued individual, while also enabling the practice to accrue long-term benefits from investing in staff training and development. This article offers an approach to developing and implementing a parental leave policy.
The reporting of gender pay gaps in Australian workplaces has been happening since 2013–14, but progress in reducing the gap has been very slow. The Workplace Gender Equality Agency (WGEA) reports that the average gender pay gap in 2022 was 22.8%, exactly the same as the year before. The Closing the Gender Pay Gap Bill 2023 aims to accelerate employer action to close the gender pay gap. It expands on the reforms in the Workplace Gender Equality Act 2012, which requires all Australian private sector employers with more than 100 employees to report annually to WGEA in relation to key gender equality indicators. The 2023 reforms include an obligation to not only report but to publish the gender pay gaps of both private and public sector businesses with more than 100 employees from 2024.
Key changes include the following:
- Late 2023 – Employers must share their WGEA Executive Summary Report and Industry Benchmark Report with their Board.
- Early 2024 – WGEA will publish private sector employer gender pay gaps.
- From April 2024 – Employers must provide additional information on employees including age, primary workplace location, CEO and casual manager remuneration.
- From April 2024 – Reporting on sexual harassment, harassment on the ground of sex or discrimination will be mandatory.
- From April 2024 – Employers with 500 or more staff must have a policy or strategy for each of the six gender equality indicators.
- From late 2024 / early 2025 – WGEA will publish Commonwealth public sector gender pay gaps.
Articles and documents
Parlour Guide to Equitable Practice – Pay Equity (currently being updated) This guide offers simple suggestions to assist practices in evaluating, establishing and maintaining pay equity, and to help individuals seeking to achieve gender pay equity. It also makes suggestions as to how the profession as a whole can assist in addressing the issue.
“Battling Pay Inequity” – Cassandra Keller – Just because something is an accepted part of a professional culture does not make it right or even legal. It’s up to each employer to make a conscious decision to do things differently. Compare and contrast pay rates and don’t misread confidence for competence. Cassandra Keller tells it like it is.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and the Anti‑Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 have wide-ranging impacts on employer obligations regarding sexual and sex-based harassment.
From 6 March 2023, the prohibition of sexual harassment in the workplace is enshrined in the Fair Work Act, and there is now a positive duty on employers to prevent workplace sexual harassment, sex discrimination and victimisation.
According to the Respect@Work website, ”this important change requires employers and PCBUs to shift their focus to actively preventing workplace sex harassment and discrimination, rather than responding only after it occurs. The new positive duty imposes a legal obligation on employers and PCBUs to take proactive and meaningful action to prevent workplace sexual harassment, sex discrimination, sex-based harassment, conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex and victimisation from occurring in the workplace or in connection to work.”
The amendment to the Fair Work Act protects workers (which includes contractors, subcontractors, trainees, work experience students and volunteers), prospective workers and persons conducting or undertaking a business from sexual harassment.
Perpetrators can be liable to civil penalties (up to $82,500 for a corporation) as well as compensation. Importantly, an employer can be held liable for the actions of their workers, unless they can demonstrate they took all reasonable steps to prevent the conduct.
Workplace prevention and response
The Respect@Work Report recommends the adoption of a new workplace prevention and response model structured around seven inter-related domains:
- Risk assessment and transparency
The Australian Human Rights Commission has new regulatory powers to investigate and enforce compliance with the positive duty. The Commission’s compliance powers will start in December 2023 to give employers time to make changes to ensure they comply with their new legal obligations.
The Fair Work Commission now has expanded powers to deal with disputes about sexual harassment, including to arbitrate disputes by consent. Someone who experiences sexual harassment in connection with work will be able to pursue civil proceedings if the Commission can’t resolve their dispute.
Workers have the choice to pursue their dispute through the Fair Work Commission, the Australian Human Rights Commission or applicable state and territory anti-discrimination processes.
Respect@Work – Website with extensive resources
Fair Work Ombudsman – Sexual Harassment in the Workplace
Fair Work Ombudsman – Making a complaint about workplace sexual harassment
Fair Work Ombudsman – Workplace sexual harassment training module
Australian Human Rights Commission – Sex discrimination factsheet
CPD Parlour Live videos
Stepping Up on Harassment – This session focuses on sexual harassment, bullying and family and domestic violence. These are challenging topics, but ones we must engage with in meaningful, sensitive and robust ways. Watch this considered discussion with Adam Haddow of SJB, Tara Keast of DesignInc and Gosha Haley of Grimshaw.
Articles and documents
“Understanding Bullying and Harassment” – The first steps in ensuring our workplaces are safe places is to understand what bullying and harassment looks like, to recognise the cultures that enable it, and to understand the costs to individuals and practices. This article was developed as part of a set that draws on the Champions of Change material. It assembles materials and definitions from a broad range of sources to support increased understanding. It concludes with an outline of a zero tolerance approach and a simple framework to support positive workplace cultures.
“How to Prevent and Respond to Sexual Harassment in the Workplace” – The Champions of Change Coalition has undertaken extensive work in this area and argues that visible leadership is required to drive disruptive change – incremental improvements are not enough. The Disrupting the System report provides the framework for this change. An overview of the principles and resources is offered here to support action in architecture and built environment practices.
“It’s time to Talk About Sexual Harassment” – In August 2018, the President of the WA chapter of the Australian Institute of Architects, Suzie Hunt, felt compelled to write a letter to the WA membership about some of the disturbing stories of harassment and abuse that had been shared at a recent #WWW event on the #TimesUp movement. The stories raised will be familiar to all, resonating on a national and a global level. Suzie gave Parlour permission to reproduce her letter.
“Me Too? What to do if you’re being harassed” – Harassment is an all-too-common problem in Australia. One in four women have experienced some form of sexual harassment in the workplace. So, if it happens to you, what can you do? Back in 2018, we compiled some practical advice on what to do if experiencing harassment in the workplace, including defining the problem, seeking advice, making complaints and, above all else, talking about it.