Introduction of a positive duty requiring employers to implement measures to prevent sexual harassment, sex discrimination and victimisation in the workplace.

The Fair Work Act will explicitly prohibit sexual harassment in connection with work, which includes the workplace. 

Employers face new obligations before they can refuse a flexible work arrangement.

They must:

• 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 refusal, other changes the employer is willing to make to accommodate the employee’s circumstances, and information about referring a dispute to the Fair Work Commission. 

When an employee makes a request to extend their unpaid parental leave, you can:

• agree to the request
• discuss and agree with the employee to a different extension period. 

More employers will be exposed to multi-employer bargaining through the introduction of single interest agreement bargaining. 

• Small business owners with less than 20 employees cannot be compelled to bargain under the single interest stream.
• For those with 20-49 employees, the responsibility will be on the bargaining representative (for example a Union) to demonstrate that business operations and activities are reasonably comparable with those of other employers (that are covered by the agreement). 
• For businesses with 50 or more employees, it is presumed that business operations and activities are reasonably comparable with those of other employers (that are covered by the agreement). 
• If the bargaining representative can demonstrate the above, these employees are then to be included under the single interest agreement. The responsibility is then on the employer to prove otherwise. 

From 1 February 2023, full-time, part-time, and casual employees of non-small business employers can access 10 days of paid Family and Domestic Violence Leave.

For those who work for a small business with less than 15 employees, access to this leave starts on 1 August 2023. When counting the number of employees, employees of associated entities of the employer are included in this number. Casual employees are not included in this total unless they are engaged on a regular basis.

In our submission to the Australian Government on the development of this leave, we emphasised the special circumstances in smaller and family workplaces, particularly in family businesses and in small and regional communities, where vulnerable employees may also be family members or have personal associations with perpetrators.

To help small and family businesses provide the best possible support in the spirit of the new leave and to comply with new law, we urged the Fair Work Ombudsman to produce  education and information resources that smaller workplaces could readily put into operation.

As part of the 2022-23 October Budget, the Australian Government announced $3.4 million to develop and deliver education materials, provide technical advice, and support services help small and family businesses implement the new leave arrangements in their own workplaces.

We continue to work with the Fair Work Ombudsman to make sure resources intended for smaller workplaces are as helpful and useable as possible.

What small businesses need to know

• The full 10 day leave entitlement will be immediately available ; meaning it does not need to be accumulated like annual leave. However, it won’t accumulate over subsequent years if it is not used, and will reset to 10 days on the anniversary of when the employee started working for that employer.
• Full-time and part-time employees will be paid at their full rate of pay for the hours they would have worked. Casual workers get the full rate of pay for the hours they were rostered to work.
• Pay slips must not mention Family and Domestic Violence Leave, record leave balances, or the amount of leave taken.

According to the Fair Work Ombudsman, employees can take paid Family and Domestic Violence Leave if they need to do something to deal with the impact of family and domestic violence.

This could include:

• making arrangements for their safety, or the safety of a close relative (including relocation)
• attending court hearings or accessing police services
• attending counselling, or appointments with medical, financial, or legal professionals.

An employer can ask for evidence to show the employee took the leave to deal with family and domestic violence.

The types of evidence provided can include:

• documents issued by a police service
• documents issued by a court
• family violence support service documents
• a statutory declaration.

Employers can ask employees to provide evidence for as little as one day or less off work.

Employees must notify their employer as soon as possible if they need to take leave, and in some cases, this could be after the leave has commenced.