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22 January 2013 Important Changes to Employment Law for 2013

By Richard Ottley, Partner and Laura Sowden, Solicitor

Fair Work Changes

Various amendments made to the Fair Work Act 2009 (Cth) came into force on 1 January 2013. A significant change is to the time periods within which dismissal applications must be lodged with the renamed Fair Work Commission (formerly Fair Work Australia):

  • The time for lodging an unfair dismissal claim increases from the previous 14 days to 21 days for those dismissed on or after 1 January 2013.
  • The time for lodging a general protections claim (relating to termination) decreases from the previous 60 days to 21 days for those dismissed on or after 1 January 2013. 

For more information please see New Workplace Laws article.

Dad and Partner Pay

The Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other measures) Act 2012 (Cth), amongst other things, makes amendments to the Paid Parental leave Act 2010 (Cth). The broadening of the government funded paid leave means that from 1 January 2013, a dad or partner may be eligible for 2 weeks leave, paid at the national minimum wage rate (currently $606.40 per week).

A "dad or partner" includes:

  • biological father of the child
  • partner of the birth mother
  • adopting parent
  • partner of the adopting parent
  • parent in a surrogacy arrangement
  • partner of a parent in a surrogacy arrangement, or
  • same-sex partner of the birth mother, biological father or the adopting parent.

There are various criteria to be met in order to be eligible for the paid leave. The dad or partner must:

  • provide care for a child born or adopted on or after 1 January 2013
  • be an Australian citizen or resident
  • have worked for at least 10 out of the 13 months before the date the "Dad and Partner Pay Period" commences and at least 330 hours in that 10 month period (just over a day a week), with no more than an eight week gap between two consecutive working days;
  • have an individual adjusted taxable income of $150,000 or less in the financial year either before the date of the claim or the date the "Dad and Partner Pay Period" commences (whichever is the earlier); and
  • be on unpaid leave or not working during the "Dad and Partner Pay Period".
Reporting on Gender in the Workplace

The Equal Opportunity for Women in the Workplace Act 1999 (Cth) which introduced employer reporting on their progress regarding women in the workplace has been amended to form the new Workplace Gender Equality Act 2012 (Cth). This has also meant a change in the name of the responsible government agency from the Equal Opportunity for Women in the Workplace Agency to the Workplace Gender Equality Agency (the Agency). It is to this renamed body that employer reports must be submitted.

Although the requirement is preserved, that non public sector employers with 100 employees or more must report certain gender specific information, if an employer's number of employees falls below 100, it must continue to report until it has less than 80 employees.

The current reporting regime will be maintained for the 2012-2013 period, however employers will need to comply with new notification and access requirements.

For the 2013-2014 period, the new reporting regime will be in place.

In respect of each new reporting period, a relevant employer must prepare a public report in writing containing information relating to the employer and to the "gender equality indicators". The following "gender equality indicators" for the new reporting framework are:

  1. gender composition of the workforce
  2. gender composition of governing bodies of relevant employers
  3. equal remuneration between women and men
  4. availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities
  5. consultation with employees on issues concerning gender equality in the workplace
  6. any other matters specified by the Minister in a legislative instrument.

After consultation with stakeholders, the Minister must, by legislative instrument, specify matters in relation to each "gender equality indicators" prior to the beginning of the reporting period to which they apply.

Employers with 100 employees (or more) need to be aware of the changing requirements under this legislation.

Bills currently before Federal Parliament likely to become Law

Harmonisation of Federal Discrimination Legislation
2013 is likely to see Parliament passing the current Human Rights and Anti-Discrimination Bill 2012 (Cth) which late last year was being considered by the Senate. The Bill consolidates various federal pieces of anti discrimination legislation into one. It also covers the field of what is protected from discrimination adding important categories such as sexual orientation (not previously protected at a Federal level).

Significantly, this Bill also introduces a reverse onus of proof in discrimination claims. That means, once someone has brought a claim and provided evidence as to discriminatory action(s) it is up to the other side to prove the action was not discriminatory.

For more information please see our Federal Anti-Discrimination Legislation Harmonised article.

Fair Entitlements Guarantee Bill 2012
This piece of proposed legislation is to codify into law the current arrangements under the General Employee Entitlements Redundancy Scheme (GEERS).

GEERS and the Bill provide a level of Government financial assistance for employees in circumstances where an employer has entered into bankruptcy or gone into liquidation.

Employee entitlements which can be advanced include: wages, annual leave, long service leave, pay in lieu of notice and redundancy pay.

For more information please see our Fair Entitlements Guarantee Bill 2012 article.

Richard Ottley, Partner  |  Phone: +61 2 9233 5544  |  Email: rbo@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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