Gender equality measures and small claims process

Find information about changes to support gender equality. We also have information about changes to the small claims process.

Anti-discrimination

From December 2022, there are new protected attributes at work:

breastfeeding
gender identity
intersex status.

This means employers are prohibited from taking adverse action against current or future employees because of these attributes from this date.

Employees or future employees who experience adverse action because of these attributes may be able to make a complaint through the Fair Work Commission (the Commission). We (the Fair Work Ombudsman) have the power to start court proceedings for alleged breaches relating to the new protected attributes. You can read our Compliance and Enforcement Policy for information about how we perform our compliance and enforcement roles.

We're updating the information on our Protection from discrimination at work page to reflect these changes. Please keep checking these pages for updates.

There are also new rules about including discriminatory terms in awards and enterprise agreements. For more information, read the Department of Employment and Workplace Relations fact sheet Strengthening protections against discrimination.

Prohibiting workplace sexual harassment

From 6 March 2023, the Fair Work Act will prohibit sexual harassment in connection with work, which includes in the workplace. The protection won't apply to sexual harassment of a worker that starts before 6 March 2023.

This protection will apply to:

workers including employees, contractors, work experience students and volunteers
future workers
anyone conducting a business or undertaking.

A person or company will also be liable for sexual harassment committed by an employee or agent in connection with work, unless they can prove that they took all reasonable steps to prevent the sexual harassment.

The Commission will have expanded powers to deal with disputes about sexual harassment, including to arbitrate disputes by consent.

Someone who experiences sexual harassment in connection with work (or an industrial association entitled to represent them) will be able to pursue civil proceedings if the Commission can't resolve their dispute. For more information, read the Department of Employment and Workplace Relations fact sheet Prohibiting sexual harassment in the Fair Work Act.

We will also have the power to start court proceedings for alleged breaches of the new prohibition. You can read our Compliance and Enforcement Policy for information about how we perform our compliance and enforcement roles.

Unpaid parental leave changes

There are changes to how employers need to respond to requests for extending unpaid parental leave. These new requirements apply to requests for an extension of unpaid parental leave made from 6 June 2023.

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

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

The employer needs to put this in writing to the employee within 21 days of the request.

If an employer refuses a request to extend unpaid parental leave, the employer needs to:

respond to the request in writing within 21 days
only refuse a request if:
- the employer has discussed and genuinely tried to reach an agreement with the employee about an extension, but not reached an agreement
- the employer has considered the consequences of refusing the extension
- the refusal is on reasonable business grounds.

The written response needs to:

include details of the reasons for refusal, including the employer's particular business grounds and how those grounds apply to the request
state an alternative period of extension the employer would be willing to agree to or that there isn't any extension they would agree to
include the new dispute resolution provisions that the Commission will have.

The Commission will also now have the power to deal with disputes about requests for extending unpaid parental leave, which include arbitration. We will also have the power to start court proceedings for alleged breaches of orders made if the Commission arbitrates a dispute. You can read our Compliance and Enforcement Policy for information about how we perform our compliance and enforcement roles.

For more information, read the Department of Employment and Workplace Relations fact sheet Unpaid parental leave.

Changes to Fair Work Act objectives

New Fair Work Act objectives

The Fair Work Act has new objectives that need to be considered when interpreting and applying the Act:

promoting job security
promoting gender equality.

This means that the Commission needs to take these objectives into account when performing its functions or exercising its powers under the Fair Work Act. For example, the Commission needs to consider these objectives when it sets the terms and conditions in awards.

New modern awards objectives

The Fair Work Act's modern awards objective has also been changed to include the following factors for the Commission to consider when setting award terms and conditions:

the need to improve access to secure work across the economy
the need to achieve gender equality in workplaces.

The changes to the Fair Work Act and modern awards objectives apply after 7 December 2022 to:

proceedings in the Commission already underway on this date
proceedings or matters in the Commission that start after this date.

New minimum wages objective

The Fair Work Act's minimum wages objective has also been changed to include a new factor for the Commission to consider when setting minimum wages. This is the need to achieve gender equality and applies after 7 December 2022 to annual wage reviews from the 2022-23 financial year.

For more information, read the Department of Employment and Workplace Relations fact sheet Including gender equality and job security in the objects of the Fair Work Act.

New equal remuneration principle

The Fair Work Act now has a new equal remuneration principle to guide the Commission's consideration of equal remuneration and work value cases. This is to help the Commission issue pay increases to workers in low-paid, female dominated industries.

For equal remuneration cases, the Commission can now make an equal remuneration order (ERO) on its own initiative as well as on application.

When considering an application, the Commission:

can consider comparisons between occupations and industries or if work has been undervalued based on gender historically
isn't limited to comparing similar work and doesn't need a male comparator
isn't required to find discrimination based on gender if considering a comparison or if work has been historically undervalued based on gender.

These changes apply after 7 December 2022 where the Commission performs functions or exercises powers:

in proceedings already underway on this date, or
in new proceedings or matters after this date.

For any existing ERO applications before the Commission on 7 December 2022, the Commission has to make the ERO if it's satisfied that there isn't equal remuneration for work of equal of comparable value.

For work value cases, the Commission can't consider any gender-based assumptions, but needs to consider if the work has been undervalued in the past because of gender-based assumptions. This applies to:

determinations or awards the Commission makes after 7 December 2022 (including proceedings already underway)
any determinations made after 7 December 2022 in any ongoing 4 yearly award reviews.

For more information, read the Department of Employment and Workplace Relations fact sheet Reforming the equal remuneration provisions.

New expert panels

These changes take effect on 6 March 2023 or an earlier date fixed by proclamation. We will update this information if a different date is set.

The Commission is required to establish 2 new expert panels for pay equity and the care and community sector to determine equal remuneration cases and certain award cases.

These panels are required to make certain:

determinations
EROs
award and award variations.

For more information, read the Department of Employment and Workplace Relations fact sheet Establishing two new expert panels in the Fair Work Commission.

Considerations when performing our functions

The new laws also include rules about how the Commission and the Fair Work Ombudsman (us) perform our functions.

When providing education, assistance and advice, both organisations need to make sure we're considering the need to provide guidelines, material and community outreach in multiple languages.

These changes come into effect from 7 December 2022.

For more information about our priorities and how we perform our work, see:

Enhanced small claims process

From 1 July 2023, the monetary cap for recovering unpaid entitlements via the small claims process will increase from $20,000 to $100,000.

We're updating our website and will have more information about these changes soon.

For more information, read the Department of Employment and Workplace Relations fact sheet Amending the Fair Work Act small claims process.

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