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HR Heartbeat: AHRC steps in to prevent sexual harassment, limits to fixed-term contracts, and...

The Australian Human Rights Commission is enforcing employers’ positive duty to prevent sexual harassment, fixed-term contracts officially have new limits, and more in this round of HR Heartbeat.

Friday, Dec 15, 2023
4 min read

Have you heard the latest news?

Everything you need to know about the latest trends impacting employers all over Australia. Keep up to date with the HR Heartbeat.

Let’s get into the headlines.

That’s two long for an appointment

News headlines often carry a word of warning for businesses and employers alike.

The Lehrmann defamation trial is no different. It reminds us that workplace complaints can tail employers for years after the allegations take place.

All eyes are on the Federal Court as Higgins gives evidence in relation to the alleged sexual assault by Lehrmann at Parliament House in 2019. A stark reminder that not even government departments have appropriate support and processes in place for their employees.

Statements from the witness box have revealed that the Employee Assistance Program provided to Higgins had no appointments available for her for two months. Only this year, four years after the alleged incident took place, did Parliament introduce a Bill that would create a Parliamentary Workplace Support Service.

This case emphasises why it’s necessary for employers to have sufficient policies and established processes in place to make sure workplaces are safe for all. Especially on account of:

  • The 12 December 2022, introduction of the positive duty to prevent sexual harassment
  • The 6 March 2023, introduction into the Fair Work Act (FWA) of the prohibition of sexual harassment

Stay on top of your documentation requirements and make sure your employees and business are supported by up-to-date policies and handbooks with our extensive library of document templates on BrightBase.

A positive development

A national inquiry into sexual harassment in Australian workplaces revealed that 1 in 3 people experienced sexual harassment at work within the last 5 years.

In the wake of this finding, on 12 December 2023, the Australian Human Rights Commission (AHRC) gained the power to begin enforcing employers’ positive duty to prevent sexual harassment in workplaces.

They’ve been preparing for this moment for a while now, with the new positive duty introduced in December 2022.

If you're wondering what your duties are as an employer, the Commission has set standards and expectations in its Guidelines for Complying with the Positive Duty under the Sex Discrimination Act to help employers prevent sexual harassment in their workplace.

These guidelines include seven standards:

  1. Leadership
  2. Culture
  3. Knowledge
  4. Risk management
  5. Support
  6. Reporting and response
  7. Monitoring, evaluation, and transparency

To set expectations, policies, processes, training, and so on from the top down of an organisation.

If you need a refresher, under the Sex Discrimination Act, companies have a positive duty to eliminate when possible, the following behaviour from occurring:

  • discrimination on the grounds of sex in a work context
  • sexual harassment in connection with work
  • sex-based harassment in connection with work
  • conduct creating a workplace environment that is hostile on the grounds of sex
  • related acts of victimisation.

The AHRC refers to these as ‘relevant unlawful conduct’.

If you find yourself uncertain about what your legal obligations are under evolving laws, make sure you’re not leaving yourself vulnerable to unlawful conduct and or hefty fines by reaching out to our team of employment relations advisers for 24/7 BrightAdvice.

Those are strings, fixed-term contracts

From 6 December 2023, fixed-term contracts have been clamped by new limits.

Employers hiring fixed-term contract employees can now only place them on a contract for the shorter of two years or two back-to-back contracts.

These restrictions don’t apply to employers looking to engage employees for apprenticeships, traineeships, parental leave cover, employees with specialist skills to undertake specific tasks, or locums.

But, employers will need to provide employees they engage on a fixed-term or maximum-term contract with a Fixed Term Contract Information Statement. So, it’s time to add that to your paperwork.

A bill-shaped holiday gift

Some of the elements of the Closing Loopholes Bill, which were pushed, pulled, debated, and delayed until February 2024 have been split and passed the Parliament.

The original version of the bill was split into two, and only a few proposals have slipped through in this round. The rest are up for debate in 2024.

Something to look forward to on the employment law front in the new year. These changes are not yet law, so stay tuned for more on the Closing Loopholes front.

That wraps up this edition of HR Heartbeat. Stay tuned for more headlines and all the latest updates that will keep you in the know with all the major employment changes coming your way.

If you’ve got questions about the top HR headlines from this week, ask BrightLightning:

Do I need to offer sexual harassment training to employees?

Yes, training and awareness is a must for employers in relation to sexual harassment, but you may need to do more to comply with your duty to eliminate sexual harassment from the workplace. Additionally, requirements include ensuring that employees have and understand the businesses sexual harassment policy. If you require assistance in obtaining a sexual harassment policy, please contact the Advice Team.

What should a workplace do to support mental health and wellbeing?

Employers should first and foremost conduct a risk assessment to identify risks to mental health in the workplace and ways to eliminate or reasonably control the risks. From there, common steps to ensure a mentally healthy workplace include implementing anti-sexual harassment, anti-bullying, and anti-discrimination policies, training employees in those policies, discussing mental health in the workplace and checking in with employees, and letting employees know how to get help if they need support. For further help with establishing a mentally healthy workplace, it’s best to speak with an adviser.

Why are changes being made to limit the use of fixed term contracts?

From 6 December 2023, the Fair Work Act 2009 will be amended to limit the use of fixed term contracts for the same role beyond two years (including renewals) or two consecutive contracts. The government was of the view that fixed term contracts can exacerbate job insecurity for employees when they are used for the same role over an extended period, or where employees are subject to rolling contract renewals for jobs that would otherwise be permanent. The changes still allow fixed-term contracts continue to have a legitimate purpose, and the act will make exceptions on specific grounds. Please contact Advice for guidance on your obligations and how to comply with the changes to fixed term contracts.

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