This International Women’s Day, Australian women should be celebrating recent legal changes designed to improve their working conditions. But this is just the first step. Discrimination cases are costly. Women need to insist this changes if we want to make further progress on achieving equality at work.
Less Secrecy and More Flexibility
Late last year, the federal government amended the Fair Work Act 2009 and it is now littered with references to gender equality including in the Act’s objects. Other inclusions are: the Fair Work Commission must take gender equality into account when setting modern awards and reviewing the minimum wage; when the Commission is assessing applications for equal remuneration orders, its assessment must be free of gender based assumptions; the Commission is in the process of establishing a specialist panel to deal with pay equity; and female workers can’t be subject to adverse action (like termination or demotion) because they are breastfeeding.
The government has made it unlawful for employment contracts to include a clause requiring pay secrecy so workers can ask their colleagues what they’re being paid and disclose their pay if asked.
We know that more and more workers are looking for flexibility so that they can balance work and caring responsibilities and that women are more likely to seek flexible working arrangements than men. Workers have the right to request flexibility under s 65 of the Fair Work Act (on a range of grounds including disability) but until now, if their employer refused the request on reasonable business grounds, that was not reviewable.
From 1 June 2023 if an employer refuses the request or does not respond, then the employee can take the dispute to the Fair Work Commission which can review the basis for the refusal. This provides a degree of oversight into how these requests are being assessed.
Pregnant and Productive
Also worth celebrating is that from June, pregnant women will be able seek flexible working arrangements so that they can continue to work as their body changes over the course of their pregnancy. These changes won’t necessarily be expensive for employers. In research I conducted on pregnancy discrimination, one worker only needed a fan because her office had faulty air conditioning and her body temperature was higher than normal. Modifications might be as simple as standing less, more frequent bathroom breaks, working at different times of the day.
Sexual harassment continues to be an issue affecting women in the workplace. The law’s approach to sexual harassment has been to give workers the right to make a claim for compensation if they have been sexually harassed at work. Employers who failed to take reasonable precautions to stop unlawful behaviour could be held liable for their employee’s conduct.
This retrospective approach is inadequate and places a heavy burden on the worker experiencing harassment to do something about it. Most choose not to, just like workers who are discriminated against.
A Shift in Thinking about Equality
Respect@Work, the Australian Human Rights Commission’s lengthy report into this issue recommended a raft of legal and institutional changes to improve the current framework so that it is victim-centred and preventative. All but one of the 12 legislative changes recommended by the report have now been implemented. Two new mechanisms indicate a significant shift in thinking about the best approach for tackling sexual harassment and sex discrimination.
The first is that a worker who believes that they’re being sexually harassed at work and is at risk of that behaviour continuing can seek a Stop Order from the Fair Work Commission to prevent the behaviour from continuing. Employers can also be ordered to make changes to working arrangements, monitor workplace behaviour and conduct training. Failure to obey the Order can result in hefty penalties.
Stop Orders are designed to target the behaviour early on before the harm has compounded, the employment relationship breaks down and the women is forced out of employment and into litigation.
The second mechanism is the positive duty. Employers and persons conducting a business will be required to take measures to eliminate sex discrimination, sexual harassment and victimisation.
Like the Stop Order, the positive duty is designed to address behaviour early on, before things escalate. Employers are required to evaluate their workplace, identify problems, and take measures to address them. Failure to comply with the duty can result in an investigation by the Australian Human Rights Commission.
Both mechanisms are to be celebrated for being proactive rather than reactive, and for taking the burden off the employee who is experiencing discrimination.
Discrimination is Intersectional
While we should rejoice that the legal framework now includes these mechanisms, this isn’t time to rest – there is more to be done.
This shift in approach from dealing with discrimination after the fact to prevention and promoting equality needs to be applied to other areas of discrimination. Particularly because it can be difficult to unravel the basis for the discrimination. Discrimination can be intersectional and affect women on the basis of their race, age or disability as well.
Costly barries to Legal Action Remain
Women contemplating legal action are met with various hurdles. Legal action is exhausting emotionally. It’s time consuming. Most importantly, it is costly. The risk is greater for workers who use federal anti-discrimination laws because if they lose, they might have to pay the other side’s costs as well as their own.
The Commonwealth government is currently conducting an inquiry into costs in discrimination claims. Even with the introduction of Stop Orders and the positive duty, women will still need to bring discrimination claims and so reform is needed.
Adriana Orifici and I recently interviewed Victorian lawyers who have run sex discrimination claims and we asked them about the barriers women face in taking legal action. They said the cost was the primary reason women don’t proceed.
One experienced lawyer recalled cases “where women have gone through matters and ended up handing back almost everything they got in legal costs, having… absolutely run the gauntlet.”
By IWD 2024 let’s hope we’re celebrating that women no longer face the risk of the crippling cost of taking legal action to enforce their rights at work.
- Please note: picture at top is a stock image.
Associate Professor Dominique Allen is a socio-legal scholar at Monash Business School, researching anti-discrimination law and equality. Her work uses doctrinal, comparative and empirical methodologies. In 2022 she received the Dean’s Award for Equity, Diversity and Social Inclusion Research Excellence.