25 February 2024
7 min read
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[Update on 28 February 2024: The Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 received Royal Assent on 26 February 2024. References to the Bill in this article now refer to the Act and most of the planned changes will commence this year.]
Last year ushered in many changes to the workplace, from the Federal Government’s Secure Jobs, Better Pay Act to the first tranche of the Fair Work Legislation reforms (Closing Loopholes Bill). With more on the way in 2024, including the second tranche of the Closing Loopholes Bill just introduced this year, employers and their HR teams face a busy year ahead.
See our article on Closing Loopholes: 2023 recap & 2024 outlook discussing the changes that are in force and the changes that are to come into force under the Closing Loophole Bills.
So, what does 2024 have in store for employers? We highlight six key areas and issues businesses should focus and prepare for.
1. Positive duty to prevent workplace sexual harassment
The Sex Discrimination Act 1984 (Cth) was amended to impose a new positive duty on employers to take reasonable and proportionate measures to eliminate, as far as possible, workplace sexual harassment and related unlawful conduct. And as of late last year, the Australian Human Rights Commission (AHRC) has powers to enforce compliance of the positive duty.
In 2024, we expect to see an increase in enforcement by both the AHRC and health and safety regulators, with a focus on psychosocial hazards in the workplace. Employers must be prepared to meet their new obligations or face scrutiny from external regulators in a way they have not had to do so before. While updates in company policies and training may provide a minimum basis to prove compliance, this alone is unlikely to meet regulators’ expectations or discharge the positive duty. We expect to see a significant focus on the need to implement preventative control measures in 2024.
Businesses should commence taking steps now to ensure compliance, such as reviewing AHRC guidance and conducting a thorough review of their complaints process, policies and staff training. Given the diverse range of actions required to discharge the positive duty and the varying resources available to businesses, there is no one-size-fits-all solution. However, it is clear that preventative measures are key – including identifying specific risk factors and taking action when needed. Employers can gain valuable insights into potential risks - and take proactive measures to address them - by regularly analysing data on past complaints, employee attrition rates, exit interviews, incident reports and employee surveys.
2. Domestic and family violence leave
Since August of last year, all businesses, regardless of size, must offer ten days of paid domestic and family violence leave to employees. It is crucial that human resources is across these changes, as a failure to do so will likely increase the risk of a general protections or unfair dismissal claim being lodged against them.
Employers should review current procedures to ensure employees are aware that they can access their entitled leave and to ensure compliance with the Fair Work Act 2009 (Cth), which may involve reviewing how leave requests are managed, who handles record-keeping for leave balances and implementing strategies to maintain confidentiality in record-keeping.
HR, managers, and payroll staff should receive training on domestic and family violence leave, with emphasis on the importance of handling private information sensitively and that any use of that information for other purposes, such as termination of employment, performance management or relegation will be considered adverse action and may trigger the general protections provisions. Similarly, payroll need to be aware that ‘domestic and family violence leave’ cannot be recorded on an employee’s payslip, which is a requirement put in place to protect employees should a perpetrator access their payslips.
3. Working from home, the right to disconnect and managing workloads
Four years on from the pandemic, employee expectations have undeniably shifted after many businesses adopted hybrid or working from home policies. With recent trends showing that employers are directing employees to come back to the office in 2024, employers will need to carefully balance business and operational needs with these expectations for flexibility.
Employers will contend with whether workplace boundaries have been blurred by the pandemic-induced switch to working from home as the ‘right to disconnect’ has been and will continue to be a hot topic this year. With the Federal Government including a legal ‘right to disconnect’ in the second tranche of the Closing Loopholes reforms, employers will soon no longer have direct access to employees outside of work hours. Under the ‘right to disconnect’, employees can ignore calls, emails or messages from their employers after work hours, where reasonable, without fear or punishment. We expect this right to impact each industry differently.
Employers will need to carefully consider their health and safety obligations and focus on managing psychosocial hazards that can arise from change management, role overload, unrealistic expectations for employees to be responsive outside of work hours and poor organisational justice. We have seen an increase this past year in regulators taking enforcement action in relation to psychosocial risk and expect this to continue in 2024.
In 2024, there is no doubt that employers will continue to receive requests for flexible working arrangements. With the Fair Work Commission now empowered by the amendments made to the Fair Work Act under the Secure Jobs, Better Pay Act to address disputes on these requests, employers should keep an eye out on future decisions. The Full Bench of the Commission delivered its first in this regard late last year in Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209 and in doing so, have given employers guidance on when a request for flexible working arrangements has been validly made.
4. Upcoming changes to the gig economy
With the second tranche of the Closing Loopholes Bill now passed, the ‘ordinary meaning’ of employer and employee will be amended and ‘employee‑like workers’ will be covered in the Fair Work Act. Under this legislation, gig workers will be entitled to rights such as minimum wage, penalty rates and superannuation.
Businesses will need to stay up to date on their employees’ rights in the workplace – including knowing the correct award that applies to their employees and the relevant minimum pay rates, penalty rates and overtime. This may mean conducting a proactive review of current contracts and considering the impact legislative changes may have on business operations.
5. Superannuation under the National Employment Standards
From 1 January 2024, the National Employment Standards (NES) has been amended to include superannuation as an entitlement. This means that employees covered by the NES have the right to pursue unpaid or underpaid superannuation under the Fair Work Act, so long as the ATO has not already commenced proceedings. As long as employers are fulfilling their obligations under superannuation guarantee laws, the NES provision will not be contravened.
Employers should review payroll processes and issue the updated Fair Work Information Statement to all new employees before, or as soon as possible after, they commence their role. Employers should be aware that any breaches of the entitlement will be subject to civil penalty provisions of the Fair Work Act.
6. WHS updates
Tougher penalties for offences under the federal Work Health and Safety Act 2011 came into effect late last year, following the passing of the first tranche of the Closing Loopholes Bill.
The Closing Loopholes legislation also introduced the offence of industrial manslaughter for causing a workplace death through negligent conduct or recklessness. Applying to officers and persons conducting a business or undertaking (PCBUs), the offence takes effect on 1 July 2024 and carries maximum penalties of $18 million for bodies corporate and 25 years’ incarceration for individuals.
This is a reminder for businesses to conduct an audit of the risks of their workplace and ask ‘have you limited each risk as far as reasonably practicable to reduce the risk of workplace injury?’. In 2024, employers should take time to create a safety management plan to cover any risks identified and ensure that all staff are provided with training and support.
Employers will want to ensure all actions are documented. Keep in mind that ensuring a safe workplace is important, but in the event of legal proceedings, employers will be required to demonstrate the safety measures in place.
If you have questions, please get in touch with a member of our team below.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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