Employment and Safety: Key employment changes from 1 July 2022 and other developments

The latest issues, decisions and proposed changes impacting business and workplace risk

Key employment changes from 1 July 2022

By Emily Grutzner, Kathleen Weston and Tarsha Gavin

Employers take note

Employers should be aware of the key changes that have come into effect from 1 July 2022, including increases set for each of the:

• national minimum wage;
• award minimum wage;
• expense-related award allowances;
• high income threshold;
• superannuation guarantee rate; and
• maximum super contribution base.

There are also changes scheduled for the superannuation eligibility threshold and the Fair Work Ombudsman's strategic priorities. Employers should ensure their payroll and accounting systems are updated to correctly calculate employee wage, allowance and superannuation entitlements.

National minimum wage increase

From 1 July 2022, the national minimum wage has increased by 5.2%.

This means for a full-time employee, the new minimum wage is:

• $812.60 per week; or
• $21.38 per hour.

These figures are applicable to employees not covered by an industrial instrument such as a modern award or enterprise agreement.

Award minimum wage increase

From 1 July 2022, the minimum wage in modern awards has increased by 4.6%. This is subject to a minimum increase of $40 per week for adult award classifications.

Essentially, award wage rates:

• above $869.60 per week will receive a 6% adjustment; and
• below $869.60 per week will be adjusted by $40 per week.

The adjusted rate has taken effect for most awards from 1 July 2022. For some awards in the aviation, hospitality and tourism industries, the increase will happen from 1 October 2022 due to exceptional circumstances related primarily to the impacts of the COVID-19 pandemic. The affected awards are:

• Aircraft Cabin Crew Award 2020;
• Airline Operations – Ground Staff Award 2020;
• Air Pilots Award 2020;
• Airport Employees Award 2020;
• Airservices Australia Enterprise Award 2016;
• Alpine Resorts Award 2020;
• Hospitality Industry (General) Award 2020;
• Marine Tourism and Charter Vessels Award 2020;
• Registered and Licensed Clubs Award 2020; and
• Restaurant Industry Award 2020.

Expense-related allowances increase

From 1 July 2022, expense-related allowances in modern awards (such as clothing, meal, vehicle and tool allowances) have been adjusted based on Consumer Price Index (CPI) data. FWC staff have prepared a list of the adjusted expense-related allowances.

For the affected awards listed above, the FWC will publish draft expense-related allowance determinations on 12 August 2022.

High income threshold increase

From 1 July 2022, the high income threshold has increased from $158,500 to $162,000. The compensation cap has also increased from $79,250 to $81,000.

Superannuation increase

From 1 July 2022, the superannuation guarantee rate has increased from 10% to 10.5%.

This follows an increase from 9.5% to 10% on 1 July 2021. The rate is due to increase a further 0.5% each year until it reaches 12% in 2025. The Government has indicated it is considering legislating an increase in compulsory super to 15% after 2025. You can read more about this update in our Insight here. 

Superannuation eligibility threshold removed

From 1 July 2022, employers are required to make super guarantee contributions to all eligible employees' superannuation funds, regardless of how much the employee is paid.

Previously, employers were not required to make superannuation payments for employees earning less than $450 monthly.

Maximum super contribution base

From 1 July 2022, the maximum super contribution base is $60,220 per quarter, up from $58,920 last year.

Fair Work Ombudsman (FWO) priorities

Sandra Parker, the Fair Work Ombudsman, has announced the FWO's top priorities for FY 2022-23. These priorities include a focus on the following sectors and issues:

• fast food, cafes and restaurants;
• agriculture;
• sham contracting;
• large corporate and university sectors; and
• contract cleaning.

The majority of these priorities remain the same as the previous year, however the university sector and agriculture are new additions. You can read further details on the FWO's priorities here.

Looking to the future: what does the new government mean for industrial relations reform? 

By Sarah Lunny, Alana Perna, Chloe Wilton and Sam Betzien

A significant shift is likely

With the Labor Government back in federal office after nine years, we can expect a significant shift in the industrial relations landscape.  

How does this affect you?

Employers should take the opportunity to prepare for the upcoming changes to the industrial relations landscape by considering which reforms will impact their workforce and whether their existing policies and procedures need to be refreshed in light of the proposed reforms.

Key proposed reforms

• Criminalising wage theft
  With wage underpayments more prominent than ever, the Government has proposed to legislate to make wage theft a criminal offence at a federal level. Currently, wage theft is criminalised in Queensland and Victoria, and the Government has stated that the federal wage theft laws will not override existing state laws. For more information on the existing wage theft regimes, please see our previous Insights on the Victorian and Queensland.
• Enforceable right to superannuation
  The Government has proposed to introduce a legislative right to superannuation under the National Employment Standards of the Fair Work Act 2009 (Cth) (FW Act), which will enable employees to pursue superannuation as a workplace entitlement. Currently, employees do not have a legislative right to pursue superannuation underpayments and must file a complaint with the Australian Taxation Office.

• Paid family and domestic violence leave
  In mid-June 2022, the Government confirmed it proposes to introduce 10 days' paid family and domestic violence leave into the National Employment Standards. Currently, employees are entitled to five days' unpaid family and domestic violence leave per year under the National Employment Standards. The Government is expected to introduce this reform during the first sitting after Parliament returns on 26 July 2022. You can read more about this update in our Insight here.
• Respect@Work reforms
  The Government has committed to implementing all 55 recommendations from the Respect@Work Report, including introducing a positive duty for employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation in the workplace. For more information, please see our previous Insight on the reforms arising from the Respect@Work report.
• Closing the gender pay gap
  The Government's commitment to implementing the Respect@Work recommendations goes hand-in-hand with other gender-equality-related endeavours, including closing the gender pay gap (currently 13.8%, according to the Workplace Gender Equality Agency). The Government intends to address the gender pay gap by introducing reforms requiring employers with more than 250 employees to publicly report their gender pay gap, prohibiting pay secrecy clauses in employment contracts and expanding the powers of the Fair Work Commission (FWC) to order pay increases for workers in low paid, female-dominated industries.
• Employment Summit
  Prime Minister Anthony Albanese has commenced discussions with union leaders and employer associations to convene an Employment Summit, which is expected to take place in September 2022. The intention of the Employment Summit is to inform a White Paper on Full Employment, which is expected to include measures aimed at reducing unemployment, addressing job insecurity, eliminating discrimination and increasing workforce participation by women, mature workers, people with a disability and First Nations people. Based on recent comments made by both the Prime Minister and the Minister for Employment and Workplace Relations, Tony Burke, we predict the following areas will be discussed at the Employment Summit:
• criminalising wage theft;
• the prioritisation of secure work opportunities over gig economy arrangements;
• closing the gender pay gap; and
• simplification of the enterprise bargaining system.

While the Government has not specifically called out the absence of skilled migration following border closures in response to the COVID-19 pandemic, we anticipate this may also be an area of discussion given the prevalence of its effects on the Australian labour market.

• Secure work in the gig economy
  The Government has foreshadowed an intention to enshrine secure work as an objective of the FW Act by extending the powers of the FWC to include 'employee-like' forms of work such as gig economy work, which will enable the FWC to make orders for minimum standards for these forms of work.
• Industrial manslaughter reform
  The Government has suggested it will introduce work health and safety reforms to industrial manslaughter, which includes the ability for workers, families and unions to again be able to prosecute for breaches of work health and safety (WHS) laws, and reintroducing a reverse onus of proof on those who conduct businesses and their officers to prove they have taken reasonably practicable measures to prevent a WHS offence occurring. Currently the burden of proof rests with the prosecution in all Australian jurisdictions as WHS breaches are criminal offences and attach significant penalties up to, and including, imprisonment. While this reform has not yet been introduced in a bill, if passed this reform would be a significant change for employers.
• Abolishment of the Australian Building and Construction Commission (ABCC)
  The Government is committed to abolishing the ABCC, which is responsible for promoting and enforcing workplace compliance within the building and construction industry. Labor unwound the ABCC in 2012, before it was re-established in 2016 by the Coalition. The Master Builder's Association has estimated that the economic cost of abolishment will be $47.5 billion by 2030.
• Portable entitlement schemes
  The Government will consult with governments, unions and industry in relation to the introduction of a portable leave entitlement scheme for Australians in insecure work, which would allow employees to transfer entitlements such as leave when moving jobs within the same industry. These benefits are already available to workers in some industries, including community services, contract cleaning and security. The Government has suggested that implementing a portable entitlement scheme for workers in new or emerging industries would help to ensure these workers have the same access to entitlements as workers in more stable or traditional industries.
• Casual employment
  The Government has foreshadowed an intention to repeal the updated definition of 'casual employment' in the FW Act and restore the 'common law' definition, being the absence of a firm advance commitment to regular and stable work, assessed on an objective basis having regard to the employee's ongoing employment relationship. For more information about the current legal definition of casual law, please see our previous Insight on the High Court's decision in WorkPac Pty Ltd v Rossato¹ and the amendments to the FW Act in relation to casual employment.
• Limiting use of ongoing fixed-term contracts
  The Government intends to amend the FW Act to limit fixed-term contracts for the same role to two consecutive contracts or for a maximum duration of two years, with exceptions in limited circumstances only.
• Same Job, Same Pay
  We expect the Government to reintroduce the Same Job, Same Pay Bill that it introduced in 2021, which would require employers to ensure that workers employed through labour-hire companies or other outsourcing arrangements receive the same pay and entitlements as workers employed directly. With One Nation and the Greens also identifying job security for labour-hire workers as key party concerns, we anticipate there will be considerable pressure for reform in the labour-hire industry.

Paid family and domestic violence leave - what to expect and when to expect it

By Sarah Lunny and Hannah Jorgensen

A likely inclusion to the National Employment Standards

Following a provisional determination by the Fair Work Commission (FWC) to introduce 10 days' paid family and domestic violence (FDV) leave into modern awards, the Government has foreshadowed an intention to introduce paid FDV leave into the National Employment Standards (NES).

Key takeaways

• The Federal Government intends to introduce legislation providing for 10 days' paid FDV leave in the first sitting period when Parliament resumes in late July 2022.
• The NES entitlement is likely to apply to full-time and part-time employees and replace the existing NES entitlement to five days' unpaid FDV leave.

Background

In March 2018, the FWC varied 123 modern awards to provide an entitlement to five days' unpaid FDV leave as part of its four-yearly review of modern awards. At the time, the FWC also foreshadowed a review into paid FDV leave. Shortly after this, the Government introduced an equivalent entitlement to unpaid FDV leave into the NES, which came into effect in December 2018.

In May 2022, the FWC revisited FDV leave and, after noting there had been an increase in the prevalence of FDV during the COVID-19 pandemic, provisionally determined that modern awards should be varied to provide for paid FDV leave.

After considering submissions from unions and employer groups, the FWC set out its provisional views in relation to the form and content of a model FDV leave term.² Following the FWC's provisional determination, the Minister for Employment and Workplace Relations indicated that the Government intended to introduce an entitlement to paid FDV leave into the NES.

Form of the paid FDV leave term

Assuming that the Government's legislation adopts a similar form to the FWC's provisional model paid FDV leave term, we expect the NES entitlement to have the following characteristics:

• full-time and part-time employees will have access to 10 days' paid FDV leave per year (pro rata for part-time employees). Although casual employees will not be entitled to access paid FDV leave, we expect casuals to continue to be able to access unpaid FDV leave;
• the entitlement to paid FDV leave will accrue progressively throughout a year, in the same way that paid personal leave accrues under the NES;
• FDV leave accrual will accumulate from year to year, subject to a cap whereby the total leave accrual does not exceed 10 days' leave at any one time; and
• FDV leave will be paid at the employee's base rate of pay.

We expect that the entitlement to paid FDV leave will otherwise closely reflect the terms of the existing entitlement to unpaid FDV leave under the NES.

Employee awarded compensation for lack of termination notice

By Brigid Nelmes and Tarsha Gavin

Peter David Bostock v Austmont Pty Ltd [2022] FWC 1185

Notice is critical

The Fair Work Commission (FWC) has awarded compensation to a longstanding employee terminated from their employment without notice.³

Key takeaway

Even in situations where there is a clear and valid basis for dismissal, employers should provide notice to an employee of termination (except in instances of summary dismissal) and provide the employee with an opportunity to respond.

Background: termination after 33 years

Mr Bostock brought an unfair dismissal claim against his former employer, Austmont Pty Ltd (Austmont), in the FWC. Mr Bostock was employed by Austmont for 33 years. At the time of his termination, Mr Bostock was employed full time as a Factory Foreman.

Due to illness, Mr Bostock had not worked at Austmont for nine months. Mr Bostock underwent an independent medical examination in October 2021. The examination indicated that Mr Bostock suffered from a mental illness such that he was unable to return to Austmont.

On 10 February 2022, Austmont informed Mr Bostock that he was dismissed with immediate effect. Mr Bostock commenced unfair dismissal proceedings against Austmont.

Decision: a valid cause still requires notice

The FWC decided that Austmont had a valid reason to dismiss Mr Bostock, as is generally the case where an employee is unable to perform the inherent requirements of their role. Although there was a dispute between the parties as to the cause of Mr Bostock's illness, the FWC did not consider this relevant to the reality that Mr Bostock was unable to return to work.

However, the FWC decided that the dismissal was unfair because Mr Bostock had not been notified of Austmont's intention to dismiss him and he had not been provided an opportunity to respond. The FWC considered this matter of procedural fairness was particularly owed to Mr Bostock following his 33 years of service. The FWC maintained the dismissal was harsh even though it decided Mr Bostock would have been dismissed even if notice had been given.

In the circumstances, the FWC awarded Mr Bostock $470.72 less taxation for the loss caused. The FWC decided that if the notification and show-cause process had been followed, it would have taken two more weeks for Mr Bostock to be dismissed. Therefore, it awarded Mr Bostock two weeks' pay, less the workers' compensation payments he received for that period.

Court rejects general protections claim masquerading as unlawful termination

Sue Jacobs v Adelaide Theosophical Society Inc. (New Dimensions Bookshop) [2022] FWCFB 79.

By Maddie Toohey and Laura Miller

Clarifying the criteria for unlawful termination applications

The Full Bench of the Fair Work Commission (the FWC) has confirmed the circumstances in which an employee may bring an unlawful termination application relating to alleged discrimination.

Key takeaways

• The Full Bench has confirmed that there will be limited circumstances in which an employee can bring an unlawful termination claim, instead of general protections proceedings.
• Employers should be aware that they may be exposed to the risk of unlawful termination claims where they dismiss an employee for a discriminatory reason that is not unlawful under anti-discrimination laws. Depending on the state or territory, examples may include dismissals based on political opinion or criminal record.

Background: dismissed for refusing to wear a mask when one was required

The Adelaide Theosophical Society Incorporated (the Society) dismissed an employee, Ms Jacobs, for refusing to wear a face mask, on the basis that this was an inherent requirement of her job. Ms Jacobs claimed she had a valid medical exemption from the requirement to wear a mask because she suffers from claustrophobia.

Ms Jacobs made an unlawful termination application under the Fair Work Act 2009 (Cth) (Act), claiming the Society had discriminated against her on the basis of her physical or mental disability (claustrophobia). She claimed she could continue to fulfil the inherent requirements of her role if the Society implemented alternate measures in response to COVID-19.

At first instance, the FWC found that Ms Jacobs was not permitted to make an unlawful termination application because she was eligible to make a general protections application under the Act in respect of the discriminatory conduct. Under the Act, an employee cannot make an unlawful termination application if the person is entitled to make a general protections court application.

Ms Jacobs appealed, arguing she was unable to make a general protections application because the discrimination she alleged was not unlawful under any anti-discrimination law, as these laws permit an employer to discriminate against an employee on the basis of the inherent requirements of a role.

Decision: unlawful termination applications not intended to be a primary remedy  

The Full Bench dismissed Ms Jacob's appeal. In reaching its decision, the Full Bench confirmed that Ms Jacobs was still eligible to make a general protections application relating to alleged discrimination, even if her employer could rely on a defence under anti-discrimination laws (ie the inherent requirements of her role). As a result, Ms Jacobs was precluded from bringing an unlawful termination application.

The Full Bench noted that unlawful termination applications are not intended to be a primary remedy for dismissals under the Act. Rather, such applications should only be made by those who are not entitled to bring general protections claims, such as if the person is not employed by a national system employer or if the discriminatory conduct is not unlawful under an applicable law (such as discrimination on the basis of a political opinion).

Accessories and small claims: a new approach

By Lachlan Boucaut and Laura Miller

Alvarez Nino v Kuksal [2022] FedCFamC2G 401

A reversal of previous authority

The Federal Circuit and Family Court of Australia (FCFCA) has found that accessories to contraventions of the Fair Work Act 2009 (Cth) (the Act) (such as officers and directors) can be pursued for underpayments through small claims proceedings, reversing previous authority on this point.

Key takeaway

Individuals (such as officers, directors and advisors) should be aware that compensation orders may be made against them personally for breaches of the Act in circumstances where they have been involved in a company's contraventions, even if these contraventions are small claims (less than $20,000).

Decision: officers and directors can be pursued in small claims proceedings

Mr Kuksal was the sole director, company secretary and shareholder of two (now deregistered) companies. The companies engaged individuals to perform housekeeping and cleaning duties. Eight of these individuals claimed they had been underpaid by the companies.

As the individuals could not recover the alleged underpayments from the companies due to their deregistration, the individuals pursued Mr Kuksal personally for compensation through the accessorial liability provisions of the Fair Work Act 2009 (Cth) (Act). These provisions provide that a person 'involved in' a contravention of certain parts of the Act is taken to have contravened the Act, and is therefore liable for civil penalties and other remedies relating to those contraventions.

As the underpayments claimed by the individuals were relatively small, the individuals elected to use the smalls claims procedure in the Act. This procedure allows the FCFCA to deal with small claims less formally than usual.

As a preliminary issue, Mr Kuksal said he could not be pursued personally as an accessory through the small claims procedure. Mr Kuksal relied on a previous decision of the Federal Magistrates Court of Australia (as the FCFCA was then called) in which the Court decided it did not have the power to make a compensation order against an individual accessory in a small claims proceeding.

The FCFCA rejected Mr Kuksal's argument and determined that the previous decision was incorrect for two reasons.

• First, the small claims procedure does not impede the Court's power to make orders that a person is liable as an accessory. It simply creates a less formal procedure in which the Court may reach this conclusion and caps the amount of compensation the Court may award.
• Second, the previous decision said that the Court could only make a compensation order against an employer if a claim is made using the small claims procedure. In the FCFCA's view, this position could no longer be supported based on more recent decisions of the Court. Consequently, in the Court's view, it had the power to make any orders it considered appropriate (including orders for compensation) against any person found to be an accessory.

The parties have not yet been heard on the substantive underpayment claims.

Federal Court orders million dollar general protections payment

By: Samantha Betzien, Kathleen Weston and Alana Perna

Uncapped general protections damages

Over a series of decisions, a single Judge of the Federal Court has awarded an applicant more than $2.8 million, in one of its highest lump-sum payments relating to a general protections claim. Compensation for the Fair Work Act 2009 (Cth) (the FW Act) breaches alone was set at more than $1.7million – a figure that took into account workers compensation already paid.

The decisions are a warning for employers in many ways, especially in regards to the fact that damages for general protections claims can be uncapped, despite limits in state legislation.

Key takeaways

• The Court has confirmed that the remedies available to it under the FW Act 'cover the field' regarding compensation for a loss that a person suffers because of a contravention of a civil remedy provision in the FW Act.
• This means that damages capped by state legislation, such as the Workers Compensation Act 1987 (NSW) (the WC Act), are irrelevant when determining compensation for breach of a civil remedy provision.
• Employees cannot 'double-dip' – any compensation received that relates to the breach, such as workers compensation payments, will be taken into account when assessing any judgment sum.

Background

Ms Leggett, the Applicant was a long-standing employee of Hawkesbury Race Club Limited (the Employer), who suffered 'demeaning', 'calculated' and 'increasingly intense' bullying from her Employer's new CEO. The effects of this behaviour left her unable to work and 'permanently incapacitated' from 2016 onwards. The Applicant reported the behaviour to multiple directors; however, the board '…had shut its eyes completely to the problem' and no action was taken.

In October 2016, the Applicant emailed the CEO regarding his behaviour and its effects on her. He responded to this email by requesting that she attend his office the next day to discuss her work performance. After this exchange, the Applicant took sick leave and did not return to the workplace. Upon receiving her sick leave email, the CEO forwarded it to his father-in-law, gloating that people were 'dropping like flies'.

In 2019, the Applicant filed a general protections claim against the Employer as to the CEO's behaviour. These proceedings also included:

• various other FW Act claims, relating to failure to pay annual leave and superannuation;
• a breach of contract and negligence claim, relating to late and unpaid commissions, and a failure to take reasonable care to protect employees from reasonably foreseeable injuries.

Arbitrator’s findings admitted

Before these proceedings, the Applicant had won successive workers compensation decisions against the Employer.

In one such determination, the senior arbitrator had found that:

1. the Applicant sustained a psychological injury arising out, or in the course, of her employment from May 2016 to 10 October 2016;
2. the Applicant's employment was the main contributing factor to her injury; and
3. the CEO had subjected the Applicant to bullying and harassment in the course of her employment with the club between May and 10 October 2016.

The Applicant sought to have this determination admitted into evidence. The Employer objected to findings 2 and 3 being admitted.

The Court admitted the determination and found that, on the basis of the findings of fact in the arbitrator's determination, the Employer was estopped from denying that the CEO bullied and harassed the Applicant, and that this was the main contributing factor to her injury.

The decisions

In its principal reasons in Leggett v Hawkesbury Race Club Limited (No 3) [2021] FCA 1658, the Court found on behalf of the Applicant in almost every regard. Below are the key findings .

Adverse action and other FW Act claims

Regarding the FW Act claims, the Court found that the Employer had taken adverse action against the Applicant because:

• the CEO had threatened to performance manage the Applicant in response to her complaints about his conduct and failure to provide a safe system of work; and
• the CEO withheld payment of entitlements because the Applicant had exercised a workplace right to make a complaint and to take sick leave.

The Court also found that the Employer contravened the FW Act by failing to pay the Applicant:

• her commissions within one month of those commissions becoming due;
• accrued annual leave on termination; and
• accrued long service leave on termination.

Despite the Applicant failing to explicitly plead s361 of the FW Act, the Court found that it was not necessary to do so in order to rely on the presumption, which reverses the onus of proof for adverse action claims.

Breach of contract and negligence

The Court found that the Employer had breached the employment contract by failing to pay the Applicant her commission and by negligently failing to take reasonable care to prevent her from suffering a reasonably foreseeable psychiatric injury.

Interaction between inconsistent federal and state laws

When it came to assessing damages in Leggett v Hawkesbury Race Club Limited (No 4) [2022] FCA 622, the Court considered whether the penalty provisions of the FW Act, a Federal Act, and the WC Act, a State Act, were inconsistent. The issue arose because the Employer had argued that the compensation caps of the WC Act were relevant to the question of penalty, as the damages the Applicant sought under the FW Act were properly 'work injury damages' to which the WC Act should apply.

The Court disagreed.

The Court found that, prima facie, the FW Act applied to the question of compensation, to the exclusion of the WC Act. The FW Act was described by the Court as 'covering the field', being legislation by a Federal Parliament. Because the Acts were inconsistent, s109 of the Constitution rendered the inconsistent penalty provisions of the State WC Act invalid.

Penalties

The Court awarded:

• $1,770,510 for compensation under s545 of the FW Act (taking into account workers compensation payments already received by the Applicant);
  • The largest portion of this amount was for past economic loss, valued at more than $1.1 million. Future economic loss was the next largest portion, valued at more than $800,000. Compensation for pain and suffering, reduction in quality of life and impairment was valued at just over $200,000. A credit of more than $500,000 was applied to the final figure, to account for paid workers compensation payments.
• $24,233 for breach of contract;
• $300,000 for costs; and
• $160,650 for penalties under s546 of the FW Act.

The Court ordered that, in the event that the Applicant is required to repay the whole or any part of the paid workers compensation, or any other workers compensation benefit, the Employer will indemnify her.

Further reform of sexual harassment laws

By: Madeleine Andreopoulos, Courtney Logue, Simon Dewberry

Victorian Government to tackle workplace sexual harassment

The Victorian Government released its response to the recommendations from the Ministerial Taskforce on Workplace Sexual Harassment (the Taskforce) on 11 July 2022. Of the 26 recommendations, the Government accepted 12 in full, seven in principle and two in part. The remaining five recommendations will be considered further before it responds.

Key takeaways

• The changes are in addition to existing laws that aim to prevent sexual harassment in workplaces.
• Sexual harassment will be more directly treated as an occupational health and safety issue for the purpose of legal regulation.
• The Government will look further at options for restricting the use of non-disclosure agreements.

Background

The Taskforce was established in March 2021 to consider and recommend reforms to assist in preventing and responding to sexual harassment in the workplace.

It made 26 recommendations relating to:

• preventing sexual harassment from occurring;
• supporting workers to report sexual harassment;
• enforcing compliance when there is a breach of health and safety duties; and
• raising awareness and promoting accountability in workplaces across Victoria.

These reform pillars were adapted from the Australian Human Rights Commission's Respect@Work Report (2020).

What will change?

The changes in Victoria will add to existing laws that aim to prevent sexual harassment in workplaces, including the Sex Discrimination Act 1984 (Cth), Equal Opportunity Act 2010 (Vic) and the Fair Work Act 2009 (Cth). They will also result in more resources for regulators to monitor compliance and to take enforcement action against employers that do not implement appropriate measures to prevent sexual harassment occurring in their workplaces.

In addition to existing laws, sexual harassment will be more directly treated as an occupational health and safety issue for the purpose of legal regulation in the state. This includes that:

• WorkSafe Victoria will be given increased resources to focus on this area.
• Its mental injury program, WorkWell, will be expanded to establish a dedicated stream for preventing sexual harassment in workplaces.
• WorkSafe Victoria and the Victorian Equal Opportunity and Human Rights Commission will produce guidelines for employers on how to prevent workplace sexual harassment.

As well, the Government has acknowledged the potential harm that non-disclosure agreements may cause complainants, and will further consider options for restricting their use.