The Secure Jobs, Better Pay Act (‘the Act’) contains provisions making a number of staggered changes across 2022-2023, providing significant impacts to Australian workplaces and in particular, introducing entitlements that promote equality and further protections for employees.

The changes introduced by the Act provide for significant amendments to a variety of areas including to pay secrecy clauses, enterprise bargaining, obligations to prevent sexual harassment in the workplace, limitations on the use of fixed term contracts and more. You can read about these legislative changes in further detail here.

One particular aspect that has changed with the passing of Act that businesses should be aware of, is the introduction of a further 3 protected attributes under the Fair Work Act 2009.

 

What are protected attributes?

The term ‘protected attributes’ relates to personal characteristics that are protected within the discrimination provisions in the Fair Work Act 2009. These provisions protect individuals from unfair, unreasonable and unlawful treatment (ie discrimination) based on these characteristics. Prior to 7 December 2022, the Fair Work Act 2009 only included the following protected attributes:

  • race
  • colour
  • sex
  • sexual orientation
  • age
  • physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin

As of 7 December 2022, the following three attributes were added to the list of protected attributes:

  • breastfeeding
  • gender identity
  • intersex status.

This update to protected attributes was reflected in 4 key sections of the Fair Work Act 2009: 

  • SECT 153Terms that are discriminatory
  • SECT 172A – Special measures to achieve equality
  • SECT 195 – Meaning of discriminatory term
  • SECT 351 – Discrimination

It’s important to note that these attributes were already protected under other existing legislation such as the Sex Discrimination Act 1984 (Cth). This key piece of discrimination legislation operates at a federal level, and has contained gender identity, intersex status and breastfeeding as protected characteristics for some time, meaning these attributes have already been recognised as protected within the workplace, and thus made discrimination on the basis of them unlawful. The recent changes to the Fair Work Act 2009 ensures that it is now in line with other relevant legislation.

 

What does breastfeeding, intersex status and gender identity mean?

Before employers can understand their legal obligations to employees in relation to these attributes, it is necessary to clarify the definition of these terms. 

  • Breastfeeding refers to the act of directly breastfeeding a child, and the act of expressing milk, including the need to breastfeed over a period of time and the need to take breaks for this purpose.
  • Intersex Status refers to a person holding physical, hormonal or genetic features that are neither wholly female nor wholly male, a combination of female and male, or neither female nor male.
  • Gender identity refers to an individual’s gender-related identity, regardless of what sex they were assigned or any medical intervention. Gender identity relates to expression of appearance, mannerisms or other gender-related characteristics.

 

What does this mean for my business?

Businesses should ensure that they have up-to-date knowledge of what attributes are protected by law, and particularly what the different attributes actually mean, so that they are able ensure they are adequately preventing discrimination in any form within the workplace, and are also able to swiftly deal with any issues of discrimination should these arise.

We have outlined below some steps to help guide employers on measures that you can take to prevent discrimination from occurring within your business, and to ensure you are providing a safe and inclusive work environment for all employees. We also encourage business owners to provide training and education to all staff members at all levels on discrimination prevention and how to report any issues that may occur.

  • Review documentation – We recommend businesses undertake an audit of existing language in their contracts, policies, handbooks and other documents that may not contain reference to the attributes recently introduced to the Fair Work Act 2009. For example, if discrimination policies do not reference the terms, these should be updated to include a clear message that discrimination on these grounds is unlawful and will not being tolerated by any individual. 
  • Review recruitment practices – We recommend auditing recruitment processes, such as reviewing Job Ads and application forms to ensure the terms are updated – for example, if application forms only reference ‘he/him’ and ‘she/her’ pronouns, we recommend considering including a ‘they/them’ reference. Further, we encourage businesses to ensure robust processes are in place throughout the entire recruitment process; from screening resumes to candidate selection. Your processes should ensure these decisions are based on lawful criteria such as the candidate skills or qualifications for the role. If applicants aren’t selected on the basis of protected attributes this will likely be considered unlawful (except in extremely specific circumstances, to which businesses should seek professional guidance prior to proceeding). We recommend keeping written records of any documents relevant to the recruitment process such as a candidate selection matrix or interview notes.
  • Training –  Having policies and procedures in place is a step in the right direction for preventing discrimination from occurring in the workplace, however, it is important that businesses also ensure that they regularly train and educate employees on these aspects. Discrimination in the workplace can have severe consequences for the business, including legal claims being brought and having a significant impact on the health, safety and wellbeing of employees. As such, it is important employers are taking all steps necessary to prevent this from occurring. The business should ensure employees (particularly those in management) are aware of what is considered unlawful action and the appropriate procedures that are in place to prevent this, which will cover a variety of areas from recruitment, training, promotion and management action.
  • Breastfeeding safe spaces – We recommend businesses consider employees’ needs in this area, including employees requiring an area to breastfeed or express milk at work. For example, can meeting rooms be used for this purpose, or could you section off a small area in the office? Can you partner with your building’s owners or other tenants to identify appropriate places where breastfeeding can occur? It is important to ensure any space provided is appropriate for the employee to utilise for these purposes, including being a private and undisturbed area for them to utilise. The business may also consider an employee’s request to work from home if these needs cannot be met within the workplace.
  • Partnering with organisations – Small businesses who are unsure how to navigate these areas should be encouraged to partner with organisations who can assist with identifying specific needs of your employees and your business. The Human Rights Commission can provide education and resources, however organisations who provide targeted services in these areas can be engaged to assist with measuring and responding to diversity within your workplace.

 

Final thoughts

Whatever measures you put in place, a business should never assume that they are impenetrable to issues arising; direct or indirect discrimination can arise from client groups and customers, other employees or contractors and even third party suppliers. Employees now have greater recourse for legal remedies where they feel they have been unfairly or unlawfully discriminated against in the workplace.

This means employers must consider not only how they intend on preventing such conduct from occurring, but also how they respond to it if and when this does occur. If you require support with understanding the infrastructure and documentation that you will need when responding to and investigating issues that arise, we recommend getting in touch with HR Connect.

 

About HR Connect

HR Connect is one of Australia’s leading providers of HR and workplace safety advice service, designed to help small business owners make confident and compliant business decisions.

If you need any guidance on these changes or how to apply these to your employees, please reach out to the HR Connect team for further assistance.

 

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.

Subscribe to our Newsletter