Recent amendments to Fair Work Act and Sex Discrimination Act

Recent legislative changes in the diversity space

Last week saw a flurry of parliamentary activity as important amendments were passed in respect of the Fair Work Act 2009 (Cth) and the Sex Discrimination Act 1984 (Cth).

In a recent publication, we detailed the new bullying jurisdiction which is set to commence on 1 January 2014, and which forms a critical aspect of the recent amendments to the Fair Work Act. This article will focus on some of the family friendly measures that will be implemented as a result of these amendments, as well as the Government’s efforts to enhance protection from discrimination on the grounds of sexual orientation and gender identity.

Fair Work Act Amendments

As part of the enhanced ‘family friendly’ measures, the legislation will increase employees’ minimum parental leave entitlements with changes which include the following:

  1. Pregnant workers with less than 12 months’ service will be entitled to transfer to a ‘safe job’ in appropriate circumstances. Previously, this right only applied to employees with at least 12 months’ service.
  2. If an employee takes unpaid ‘special maternity leave’ (e.g. because she is unfit for work due to a pregnancy-related illness), such leave will no longer reduce her entitlement to unpaid parental leave.
  3. Parents will be entitled to take concurrent unpaid parental leave for 8 weeks (rather than 3 weeks).

The amendments also expand the circumstances in which an employee has the right to request flexible working arrangements. These provisions will extend to employees who are: parents or who have responsibility for the care of a child who is school age or younger, carers, disabled, 55 years or older, experiencing domestic violence or caring for a family member who is experiencing domestic violence. Helpfully, the amended Act will also provide some guidance as to the meaning of the term, ‘reasonable business grounds’, which is the basis on which an employer can refuse a request for flexible work arrangements under the Act.

From 1 January 2014, it will become mandatory for awards and enterprise agreements to include a term which requires an employer to consult with employees about a change to their regular roster or ordinary hours of work. In particular, employers will be required to consult with employees about the impact of any such changes on their family or caring responsibilities. However, the Explanatory Memorandum indicates that the requirement to consult under this new provision will not be triggered by a proposed change where an employee has irregular, sporadic or unpredictable working hours.

Further, when ensuring that modern awards (together with the NES) provide a fair and relative minimum safety net, the Fair Work Commission will be required to consider (amongst other things) the need to provide additional remuneration for employees working overtime, unsocial, irregular or unpredictable hours, weekends, public holidays or shifts.

A number of other changes will also flow from these amendments, including changes to the right of entry provisions.

Amendments to the Sex Discrimination Act

The same week also saw changes to the Sex Discrimination Act which represent an effort by the Government to introduce new protections against discrimination on the grounds of sexual orientation and gender identity. The key changes are as follows:

  1. Sexual orientation, gender identity and intersex status will be added as new grounds of discrimination in certain areas of public life. The addition of ‘intersex status’ recognises that being intersex is a biological characteristic rather than a gender identity.
  2. In an effort to protect same-sex de facto couples from discrimination, the existing ground of ‘marital status’ will be extended to ‘marital or relationship status’.

The Government is still considering the possible consolidation of Commonwealth anti-discrimination legislation, after an exposure draft of such laws was put on hold in March of this year.

What does this mean for you?

In order to ensure compliance with these new laws, employers should:

  1. Review and amend their parental leave policies and practices to ensure that the new minimum entitlements described above are adhered to.
  2. Train their managers to comply with the relevant procedure set out in the legislation when dealing with a request by an employee within one of the newly specified categories for flexible work arrangements.
  3. Ensure that from 1 January 2014, employees covered by awards and certain enterprise agreements are consulted with before changes are made to their regular roster or ordinary hours of work.
  4. Update equal opportunity policies to ensure that the grounds of sexual orientation, gender identity, intersex status and relationship status are covered.


This article was written by Lauren Barel, Director and Principal of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.