April 20, 2023

 Ignorance is no defence for employment law wrong doing

Resources Unearthed employment law

There’s been a lot going on in employment law in recent times, especially in areas of sexual harassment, domestic violence leave and pay secrecy.

If you’re an executive, senior manager or business owner responsible for teams and workplace matters and you get things wrong you (as well as your business or the company) could be slapped with a very significant fine.  Unfortunately, pleading ignorance is no defence if you’re an accessory to workplace wrong doing.

Sexual Harassment
Since 6 March 2023 both the Sex Discrimination Act and Fair Work Act changed to create a much more comprehensive framework as to an Employer’s obligations to stamp out sexual harassment. As a result of those changes employees can now make application to the Fair Work Commission (FWC) for orders for stopping sexual harassment in connection with their work.

There are also new avenues for complainants and for claiming compensation and penalties for workplace related sexual harassment.

It is simply not enough anymore to react to complaints. Employers – business owner as well as responsible executives and senior managers – have a proactive and positive duty to eliminate sexual harassment as would be expected of any Workplace Health and Safety issue.  That means reasonable and practical steps must be taken to avoid sexual harassment. These actions should include implementation of policies, awareness training, conducting risk assessments and providing transparent reporting.

On the shop floor that means putting a stop to offensive or humiliating behaviours including sexually charged jokes and banter, inappropriate references to others and displaying sexual material.

Unsavoury behaviour is downright awful, especially for those on the receiving end of it. However, it’s impact can be far greater. It can be bad for morale, productivity and in turn, profitability. It can also sully the reputation of a responsible executive or manager and damage a brand which can adversely affect matters as diverse as staff retention to share prices.

It can also be financially detrimental. The business or company may face a fine of up to $66,000 but for those considered accessories, such as business owners, executives and senior managers. The maximum penalty for an individual is $13,000.

Paid Family and Domestic Violence Leave
From 1 February 2023, employees (including part time and casual employees) can now access 10 days of paid family and domestic violence leave in a 12 month period at their full pay rate.

For small business employers (with less than 15 employees) the change will take effect from 1 August 2023.

This requirement replaces the current entitlement to 5 days of unpaid family and domestic violence leave under the National Employment Standards. Whilst the full amount is immediately available, it does not accumulate from year to year. The entitlement will renew on the anniversary of employment for existing employees.

It’s also important to note, there are rules about how information about family and domestic violence leave must be reported on pay slips.

Pay Secrecy
From 7 December 2022, pay secrecy became prohibited allowing new employees the right to disclose pay information in their workplace.  This could include their wage or salary rates, working hours, commission rates, bonus criteria (including key performance indicators – KPIs) and any fringe benefits such as motor vehicles.

This change is in direct contrast to most existing employment agreements that often prevent disclosure of pay and conditions to any other person except a professional advisor.  Some of those agreements also indicate disciplinary actions should contract details be disclosed.

However, the Government’s the position is that secrecy does not promote equality or openness and can lead to disparity, especially gender disparity, and dispute.

While that may be true, for employers and management teams, team members actively sharing confidential pay and work condition information may indeed lead to disputes or at the very least workplace unrest as some individuals may attempt to weigh up their worth against others.

Pay secrecy clauses in new contracts will be prohibited from 7 June 2023, while any existing provisions will continue. Although be aware even a small unrelated change may be enough to make it a “new” agreement and void the pay secrecy clause.

Next steps
Employment law is extremely complex and change always manages to bring new complications that need to be resolved.

I’m sure each of the three matters raised here have provided plenty of food for thought, perhaps even concern. As I said at the outset, ignorance isn’t a defence, so you will need to get on the front foot to ensure you meet all legislative requirements as well as those recently announced.

In my experience, leaving workplace issues to fester or failing to act at all, usually results in a blow up at the worst possible time that can quickly attract adverse publicity, takes longer resolve and costs a lot more than it should.

Proactive action starts with a review of your employment policies, assuming you have policies, for each of these issues. This will reveal shortfalls but may not indicate exactly what actions are needed.

The point is, workplace issues can and do, adversely affect business success and in the mining and resources industry where employee cohorts can be large, there can be a lot at stake legally, financially and reputationally – you’ll need qualified advice.

As a lawyer specialising in employment law, I’d be pleased to put my hand up to help you. For more information, please contact Robert Lamb, on +61 (0) 7 3007 2000 or email contact@resourcesunearthed.com.au.

Resources Unearthed is a solutions hub that provides integrated financial, legal, property and accounting & business advisory services for executives, professionals and business owners in the mining and resources sectors.

The information in this article is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate, we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.


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