Gender equality measures and small claims process
Published 12 December 2022 | Updated 1 July 2023
Find information about changes to support gender equality. We also have information about changes to the small claims process.
On this page:
These changes take effect from 7 December 2022.
There are new protected attributes at work:
- 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 role.
Access our updated information at Protection from discrimination at work.
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.
These changes took effect from 6 March 2023.
The Fair Work Act prohibits sexual harassment in connection with work, which includes in the workplace. (This protection doesn’t apply to sexual harassment of a worker that started before 6 March 2023.)
This protection applies to:
- workers including employees, contractors, work experience students and volunteers
- future workers
- anyone conducting a business or undertaking.
A person or company is also 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 has 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) can now pursue civil proceedings, if the Commission can’t resolve their dispute.
We 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 role.
Employees who believe they’ve been sexually harassed in connection with work, whether before or after 6 March 2023, can continue to make a ‘stop sexual harassment’ application to the Commission. For more information, visit Sexual harassment in the workplace.
Access our detailed news article on the changes at New workplace sexual harassment laws.
These changes took effect from 6 June 2023.
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 also now has the power to deal with disputes about requests for extending unpaid parental leave, which include arbitration. We 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 role.
Access our updated information at Extending parental leave.
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.
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.
These changes took effect from 6 March 2023.
The Commission is required to establish 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:
- award and award variations.
These changes took effect from 7 December 2022.
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.
For more information about our priorities and how we perform our work, see:
These changes took effect from 1 July 2023.
The monetary cap for recovering unpaid entitlements via the small claims process has increased from $20,000 to $100,000. This took effect from 1 July 2023.
Access our updated information at Legal action in the small claims court.