Insights & News

February 7, 2024

Around eight months have passed since the introduction of the intractable bargaining provisions into the Fair Work Act 2009 (Cth). These provisions create a process for the Fair Work Commission (FWC) to arbitrate enterprise bargaining disputes, and to facilitate the making of enterprise agreements, in circumstances where bargaining has become ‘intractable’ (the trusty Macquarie Dictionary says this means: “hard to deal with”).

So how did we get here? Where to from here? And what does this all mean?

How did we get here?

On 6 June 2023, the intractable bargaining provisions replaced the old schemes of issuing ‘serious breach declarations’ and ‘bargaining related workplace determinations’.

Under the old schemes, the FWC could make ‘serious breach declarations’ (i.e. where there were serious and sustained contraventions of a good faith bargaining order that significantly undermined the bargaining process), which then gave the FWC scope to make ‘bargaining related workplace determinations’ if negotiations remained unfruitful.

The language in the old schemes (think “serious and sustained”, “significantly undermined”, “exhausted all other reasonable alternatives to reach agreement” and “agreement… will not be reached”) created a high bar for applicants to meet in order to satisfy the FWC that a ‘serious breach declaration’ should be made.

The upshot is that the old schemes were not used and the FWC was never called on to make a ‘serious breach declaration’.

However, under the current intractable bargaining scheme, the new standard of ‘reasonableness’ significantly lowers the bar for employees, unions and employers to request the FWC’s intervention in making bargaining determinations.

The current law

The current intractable bargaining scheme is similar to its predecessor in that a ‘declaration’ comes first.

The FWC may grant an ‘intractable bargaining declaration’ in relation to a single or multi-enterprise agreement (excluding greenfield agreements), which then allows it to arbitrate a bargaining dispute, with the arbitrated outcome being an ‘intractable bargaining workplace determination’.

The FWC may grant an ‘intractable bargaining declaration’ if:

• an application has been made (noting that an application cannot be made until the later of 9 months after the nominal expiry date of a previous enterprise agreement or after 9 months of bargaining has elapsed);
• the FWC has dealt with the dispute under section 240 of the FW Act and the applicant participated in the process – section 240 allows the FWC to “deal with” a bargaining dispute upon application by a bargaining representative through mediation, conciliation, the making or recommendations or opinions, or arbitration (if consent to do so is provided);
• there are no reasonable prosects of the relevant enterprise agreement being reached if the FWC does not make a declaration; and
• it is reasonable to make the declaration, taking into account the views of all parties.

Notably, since the introduction of the intractable bargaining provisions in June 2023, it has been largely employers (not employees and unions) that have applied for ‘intractable bargaining declaration’.

Presumably, these employers found negotiations with union to be ‘intractable’ and then sought the FWC’s assistance in arbitrating a deal with more restrained wage and condition improvements (given the FWC must take into account the interests of all parties and the terms of an applicable enterprise agreement when making a determination).

It appears that the Greens and the Labour government have caught wind of this.

Further proposed changes – ‘no lose deals’ for Unions and employees 

Part 2 of the Closing Loopholes bill could be passed any day now.

The federal Government has signalled that it intends to accept an amendment proposed by the Greens to the intractable bargaining provisions, which provide that if an ‘intractable bargaining declaration’ is made, then any ‘intractable bargaining workplace determination’ made by the FWC cannot result in any term in the determination being ‘less favourable’ for an employee or any union than the terms of an applicable enterprise agreement.

Effectively, the proposed changes mean that once the FWC is arbitrating an intractable bargaining dispute, employees and unions cannot lose – they get to keep everything they currently have, and the FWC can only make a determination that improves upon those conditions.

The Coalition highlighted their concerns in a dissenting report included within the Senate Education and Employment Legislation Committee’s report following its inquiry in respect of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (published on 1 February 2024, reiterating the Victorian Labor Treasurer’s comments that the:

“… no less favourable test… removes the incentive for unions to reach an agreement as they know that they will be no worse off on a clause by clause basis as against a current enterprise agreement. The amendment also seems at odds with how bargaining works – that is, that it’s a package and during the course of bargaining trades offs are considered and made”.  

If introduced, the ‘no less favourable’ test returns us to a version of centralised wage fixing – akin to that of the 1980s and prior, where the Australian Industrial Relations Commission (the predecessor to the current FWC) had the power to arbitrate disputes which were notified by a union and as history showed, largely only resulted in improved conditions for employees and unions.

In the meantime, the FWC continues to grapple with the new intractable bargaining scheme introduced in 2023. Just this week, a Full Bench of the FWC held in United Firefighters Union of Australia v Fire Rescue Victoria (trading as FRV) [2024] FWCFB 43 that ‘agreed’ terms are those where there is a meeting of the minds or consensus, and terms that were acceded to during bargaining, but subject to a conditional reservation (i.e. approvals etc), are not ‘agreed’ terms, and parties should be able to resile from terms that were not definitely ‘agreed’.

Perhaps the only deviation from returning to 1980s industrial relations is that the crippling industry wide stoppages that were a feature of that period are unlikely to occur with these changes – because why would a union seek to take industrial action at all given the way the deck has now been stacked in their favour? They don’t need to convince their members of the virtues of taking industrial action to further their bargaining interests, and the corresponding loss of pay that results from taking protected industrial action during bargaining. Instead, they can look to the FWC and realise all of the gain, with none of the pain.

Quick takeaways

• Easier access to arbitrated bargaining outcomes means that employers need to revise their approach to bargaining and the traditional strategies that they may have used (where the threat of an arbitrated outcome was never very likely). This requires a renewed consideration of things like an employer’s internal communication strategy with employees, the timing around which an organisation will commence bargaining, and when to use the FWC’s s.240 bargaining dispute provisions.
• That said, applying for an intractable bargaining declaration does not automatically result in arbitration before the FWC. Instead, it could put pressure on the parties to come to the table and negotiate a deal. This was the case when Virgin Australia Airlines Pty Ltd made an application. The Australian Licenced Aircraft Engineers Association filed a statement that said “one matter remains unresolved” in bargaining (maximum redundancy payments). This prompted Virgin to put a revised agreement to the vote (presumably with the redundancy issue resolved) and they withdrew their application.

For further Kingston Reid commentary in relation to the making of the first intractable bargaining declaration under the current intractable bargaining scheme, please click here.

Some years ago, I had an experience during a conciliation at the Fair Work Commission (FWC) that left a bad taste in my mouth.

I was representing an employer in a conciliation, and the applicant was being represented by a paid agent. The conduct of the paid agent was so concerning that both my instructor and I spent most of the conciliation perplexed.

It was clear the applicant had no idea about the process they were involved in and had a severe misunderstanding of the legal principles at play. It was also very clear that the applicant was being pressured by their paid agent to accept a settlement, to ensure the agent would be able to collect their fee under the “No Win No Pay” scheme the applicant had agreed to. The agent also asked for the funds from the settlement to be paid into the agent’s bank account, and not the applicant.

“And there’s nothing we can do to stop what’s happening?” my instructor asked incredulously.

“No” I said, explaining the lack of regulation in this space.

The matter ultimately resolved, but it was concerning for both me and my instructor. In my experience, while employers are usually keen to resolve matters, they are less keen when it is blatantly obvious that a paid agent is not acting in the best interests of who they represent. We like to know that we are operating in a system that offers a fair process for all, regardless of size and bank balance.

Thankfully, I am not the only one with concerns about the misleading and unethical conduct by some paid agents and the FWC is finally responding in an attempt to address the issue.

Representation in the FWC

The FWC is designed to be easily accessible and informal, meaning individuals and businesses can represent themselves if they want. However, it is not uncommon for people involved in matters before the FWC to be represented by a union or employer association, or by a lawyer or paid agent subject to permission requirements in the Fair Work Act 2009 being met.

On one hand, lawyers are required to be admitted to the legal profession and are subject to regulation of qualifications, conduct, ethics and financial dealings as well as ongoing mandatory continuing professional development.

But paid agents are non-lawyers who charge a fee for their services of representing an individual in the FWC and do not have any qualification requirements, nor are they subject to any professional scheme that regulates their conduct, ethics, financial dealings or professional development.

The issue

If you do a quick Google search, you will find several sophisticated-looking businesses offering services as paid agents to disgruntled and former employees. These businesses usually offer free initial consults and services on a “No Win No Fee” basis and make lofty claims about their track records in the FWC. It is not hard to see why someone who may be vulnerable would sign up.

However, the reality is that lawyers and paid agents are vastly different when it comes to how they can be held professionally responsible and accountable for their conduct, thus setting the stage for a greater likelihood that the applicant who uses a paid agent will be taken advantage of. While not all paid agents would seek to do this, there is worrying evidence that suggests this is a widespread issue.

FWC takes notice

There are a growing number of cases where the FWC has found that paid agents have:

• demonstrated a lack of care and attention and the necessary expertise;
• acted contrary to the client’s instructions;
• engaged in misleading and deceptive conduct; or
• not acted in the best interests of who they represent.

Most recently, on 24 January 2024, President Hatcher delivered a scathing assessment of a paid agent company called Employee Dismissals. In his recommendation in Samuel Howell v Elite Elevators Corporation Pty Ltd [2024] FWC 206 (Howell v Elite Elevators), President Hatcher did not hold back in his damning description of Employee Dismissals’ conduct while representing Mr Howell, which included:

• providing incorrect and misleading information to Mr Howell about the FWC’s role and powers and the applicable process;
• the complex terms and conditions contained in the engagement agreement Mr Howell signed, particularly as they relate to the No Win No Fee arrangement;
• the false claims Employee Dismissals made about their ‘win rate’ of having dismissals “reversed”; and
• the way in which, post conciliation, Employee Dismissal directed Elite Elevators to make the settlement payment directly to them, and not Mr Howell, without him agreeing to this as part of the settlement or discussing this with him.

President Hatcher then went on to identify 30 other cases since 2020 in which the conduct of Employee Dismissals’ agents had been “problematic”, and concluded his recommendation by saying that:

“… on the basis of the above facts, my opinion is that. . . Employee Dismissals has engaged in misleading and unethical conduct in connection with its representation of Mr Howell as paid agent in this matter and has not acted in his best interests”.

A welcome announcement

In very welcome news (and no doubt as a direct and immediate response to the conclusion President Hatcher reached in Howell v Elite Elevators), the FWC announced on 30 January 2024 that it will establish a Paid Agents Working Group to look at this very issue.

President Hatcher will lead the Working Group, which also includes senior Commission Members and senior FWC staff.

Key Takeaways

Following President Hatcher’s recommendation in Howell v Elite Elevators, the stated purpose of the Working Group is to identify and guide the implementation of measures with the aim of ensuring that all paid agents appearing before the FWC:

• conduct themselves in an ethical and honest manner;
• act in the best interests of the parties they represent; and
• generally operate in accordance with standards that are broadly consistent with what would be expected of a lawyer in the same circumstances.

The Working Group will not look at any one matter in isolation and have indicated that they will consult with regular representatives involved in individual dispute matters before the FWC, as well as with law societies, peak bodies, and other interested parties.

The FWC has not provided any indication of what measures it is looking at or how long the process will take. At a minimum, the FWC should implement guidelines or require paid agents to adhere to protocols or undertakings as a condition of representation.

Whatever the outcome, I am not alone in welcoming President Hatcher’s formation of the Working Group as a step in the right direction and one which validates the concerns and frustrations that I and many of my colleagues and clients regularly express following interactions with paid agents.

It is comforting to know that the IR system within which we operate will not allow for vulnerable people to be taken advantage of, addresses unconscionable conduct, and holds people to account.

Since our last edition of Kingston Reidable in November 2023, several significant legal developments have taken place (even during the traditionally quiet new year period in January!).

Here we outline two key developments to keep a watch on over the coming weeks as we head into another year of significant workplace reforms.

Closing Loopholes (Part 2)

Unless you’ve been on a solo pilgrimage in some far-flung region of the world for the last few months (and if so, lucky you!), you will be well aware that Government introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 in September 2023, which included a raft of proposed changes to the Fair Work Act 2009 (Cth) (FW Act), intended to implement the majority of the Government’s remaining election commitments, together with the outcomes of the Jobs and Skills Summit held in September 2022.

After several months of intense debate over some of the Bill’s more contentious proposals, the Government split the Bill on 7 December 2023 and passed the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (CL Act), which included significant labour hire reforms, expanded union delegate rights and the introduction of a federal wage (and superannuation) theft offence, amongst others (check out our previous commentary here).

As we’ve indicated in our previous coverage of the CL Act, the first few months of 2024 will continue to present as a period for further change, as those aspects of the Bill which were not passed in December 2023 come back up for debate and resolution in Parliament, including:

• changes to the existing definition of casual employment(as well as the casual conversion provisions to allow for employee-initiated conversion);
• introducing a new ‘ordinary’ meaning of ‘employee’ and ‘employer’ (to return to the ‘multi-factorial test’ and overcome the effect of two decisions of the High Court from 2022[1], in which the High Court held that where a comprehensive written contract exists, the characterisation of the relationship between the parties should be determined by reference to the terms of the contract);
• increased protections for ‘employee like’ workers – including, for example, the setting of minimum standards for ‘employee-like workers’, such as workers in the gig economy and road transport industry, where those workers have lower bargaining power;
• changes to the defence to ‘sham contracting’ (misrepresenting an employment relationship as one of independent contracting) from a test of recklessness to reasonableness (liability will not arise if at the time of the misrepresentation, the employer reasonably believed the contract of employment was instead one for services);
• amended right of entry provisions to allow registered organisations to obtain an exemption certificate from the FWC to investigate underpayment of wages or other monetary entitlements;
• changes to bargaining and the multi-employer bargaining framework, including changes to to intractable bargaining workplace determinations;
• expansion of new workplace delegates rights to regulated workers; and
• increases to the maximum civil penalties that can be ordered for standard (and serious contraventions) of the civil remedy provisions in the FW Act,

 amongst others.

Just last week, the Senate Committee inquiring into the Bill tabled its report, which (given the splitting of the Bill), was confined to those proposals not passed as part of the CL Act in December 2023. The Committee received 178 submissions and conducted 7 public hearings, at which just shy of 200 witnesses gave evidence as part of the inquiry. Subject to some amendments, the Committee has recommended that the Bill be passed.

A “right to disconnect”?

In addition, the Government has signalled its intention to consider including provisions creating a ‘right to disconnect’, in order to secure Greens’ support for the Bill. It is presently unclear whether these anticipated provisions will appear in a similar form to the Fair Work Amendment (Right to Disconnect) Bill 2023 (Cth) tabled by the Greens back in March 2023.

In relation to the proposed ‘right to disconnect’, it’s also worth noting that this is also being considered by the Fair Work Commission as part of its 2023/24 Modern Award Review, currently underway.

At the request by Minister Burke (Minister for Employment and Workplace Relations) in September 2023, the FWC is presently reviewing modern awards in relation to four key areas, including awards that cover workers in the arts and culture sector, job security, work and care and also, making awards easier to use.

In the “work and care” stream of this review, a discussion paper prepared by FWC staff and released last week on 29 January 2024 considers the right to disconnect in the context of modern award terms, inviting comment on the question as to whether there are any changes (to modern awards) needed in respect of a right to disconnect, which are necessary to ensure modern awards continue to meet the modern awards objective. Submissions are due by 11 March 2024.

Stay tuned for our further commentary on the passage of the Bill (and the various reforms contained within it) over the coming weeks.

Costs in Anti-Discrimination matters

In November 2023, the Australian Human Rights Commission (Costs Protection) Bill 2023 (the Bill) was introduced into federal Parliament.

One might be tempted to think that a proposed law related only to legal costs is not much of an issue and really only important to lawyers. But think again. The way that legal costs can (or cannot) be awarded in matters – particularly those involving employees – is a very important issue which drives behaviour and indeed the level and type of claims made.

Prior to the Bill, the position was that discrimination claims (including sexual harassment claims brought under the Sex Discrimination Act) were subject to the usual orders as to legal costs. That is, if you win you get your costs paid, if you lose you pay the other side’s costs. This is very different to claims brought under the FW Act including claims in respect of the expanded sexual harassment provisions introduced last year, which are (except in very limited circumstances) free from costs orders. That is, everyone needs to pay their own costs, regardless of outcome.

One of the recommendations of the Respect@Work Report was that discrimination matters which go to the Court following the Australian Human Rights Commission (AHRC) process should have the same costs regime as the FW Act – that is, everyone pays their own way. This recommendation was based on a conclusion that the threat of paying the prohibitive costs of the other side stopped employees from bringing discrimination claims in the Court. This would make these claims consistent with treatment of general protections and sexual harassment claims that arise from the Fair Work Act.

Instead of adopting this recommendation, the Government has instead taken a different approach, proposing through the Bill to implement what they have called an “equal access” costs approach, meaning that while employees can apply to have their costs paid by the employer if they win, an employee will never be required to pay the costs of the employer if they lose.

While this may be called an “equal access” approach, the impact is anything but equal.

There are a number of potential impacts of this proposed change, including that it is unfair for employers which are not well resourced, it encourages unmeritorious claims and significantly impacts settlement discussions.

What does this mean for employers?

If the Bill passes, the impact of this change will, in our view, be twofold:

• it’s going to encourage claims which otherwise would not have been made; and
• secondly, it also will dramatically impact early settlement discussions as the employer will know that even if the case against them has no merit at all, there is a commercial benefit in financial settlement.

Traditionally, fewer cases have been brought by employees through the AHRC, as opposed to the State Tribunals and the Fair Work Commission. This Bill – if passed – looks likely to change that statistic.

Note: The Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 (Cth) was referred to the Senate Legal and Constitutional Affairs Legislation Committee on 30 November 2023. The Senate Committee’s report is due on 9 February 2024.

[1] CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2

Are you complying with your Work Health and Safety duties?

There has been a growing trend of enforcement activity within the workplace health and safety (WHS) space across Australia in recent years.

According to data collected by SafeWork Australia, 2022 saw a total of 279 successful WHS prosecutions with aggregate fines totalling over $31M and an average fine of $116,840.

Amongst these 279 prosecutions:

• Victoria had 118 successful prosecutions with an average fine of $49,700;
• New South Wales had 58 successful prosecutions with an average fine of $235,700;
• Queensland had 58 successful prosecutions with an average fine of $56,020;
• Western Australia had 22 successful prosecutions with an average fine of $246,140;
• South Australia had 17 successful prosecutions with an average fine of $161,090; and
• Tasmania had 6 successful prosecutions with an average fine of $116,060.

These numbers have increased in 2023, notably across Victoria and New South Wales. Victoria saw a total of 153 successful WHS prosecutions with fines totalling just over $16M.

Further, New South Wales saw a total of 75 successful prosecutions with aggregate fines totalling $16.3M.

Both jurisdictions had a number of matters that were yet to be completed (as at the end of 2023).

WHS regulators are clearly increasing their enforcement activities and 2024 will see even higher rates of successful WHS prosecutions and larger fines imposed, based on the level of activity we are seeing.

It is also important to note the Work Health and Safety Amendment Act 2023 (NSW) that commenced in October 2023 saw a significant increase to maximum penalties across a range of offences under the Work Health and Safety Act 2011 in New South Wales, which suggests the average fine is likely to increase.

Further to this, while the average fine in Victoria is notably lower than that of other states, a current review of Victorian WHS legislation is being undertaken which looks to increase maximum penalties for WHS offences in Victoria.

Readers will also be aware of the Industrial Manslaughter provisions which have been enacted in nearly all jurisdictions.

This increased enforcement activity can be linked to the Australian Work Health and Safety Strategy 2023-2033 published by SafeWork Australia. This strategy represents a national vision for WHS, agreed to by the various state WHS regulators, which outlines targets that aim to achieve national WHS improvements and a goal of reduced worker fatalities, injuries and illnesses. One of the actions focuses on compliance and enforcement across WHS legislation and Regulations.

What does this mean for duty holders?

Duty holders must continue to be vigilant in ensuring that they are taking reasonably practicable steps to comply with their WHS responsibilities. They must be aware of the hazards and risks present at their workplace and the appropriate control measures to eliminate or reduce them. These control measures must ensure, so far as is reasonably practicable, the health and safety of their workers and other persons as to not expose them to a risk of death, serious injury or illness.

The duties extend to Officers of PCBU’s (Persons Conducting a Business or Undertaking) who must exercise due diligence to ensure that the PCBU has the appropriate systems and processes to comply with its safety duties.

Common risks that WHS Regulators are targeting include:

• Psychosocial risks;
• Vulnerable workers;
• Falls from height;
• Falling loads or objects;
• Working around moving plant;
• Appropriate plant use and adequate machine guarding; and
• Working on or near live electricity.

Enforcement alternatives

If a duty holder finds themselves faced with an alleged WHS contravention, there are other enforcement options available, such as Enforceable Undertakings (EUs). EUs provide an opportunity for a duty holder to engage with the state safety regulator in developing an agreed proposal to address the relevant breaches and implement significant work health and safety reform at their workplace to prevent future contraventions.

While an EU is a great enforcement alternative, they are becoming increasingly difficult to get. While they are difficult to get, they are not impossible, seen by the recent EU proposal by Fortescue Limited that was accepted by WorkSafe Western Australia in December 2023, the first of its kind under the recent WA harmonised style laws.

Given the current level of enforcement and compliance activity, we strongly urge businesses and their leadership teams to review their systems and processes and satisfy themselves that they are being effectively implemented in the workplace.

If you have any questions, please do not hesitate to give our WHS team a call to discuss.

February 6, 2024

In this article, Geoff Fowlstone, founder of strategic communications firm Fowlstone Communications, specialising in crisis management, media relations, investor relations, government affairs and internal communications and Shelley Williams, a Partner in Kingston Reid’s Brisbane office, provide practical insights on how reporting Australian organisations can prepare for the publication of gender pay gap data later this month.

The issue of gender pay equity is never far from the public agenda but is now poised to rise to the fore of national headlines, courtesy of the inaugural release of the Workplace Gender Equality Agency’s (WGEA) gender pay gap analysis.

On 27 February 2024, for the first time, WGEA will publish private sector gender pay gap data of employers with more than 100 employees. This development comes as part of a raft of legislative changes introduced in 2023 intended to address Australia’s gender pay gap (currently 21.7%, according to WGEA’s employer census data as at November 2023).

Every Australian company that falls within this category needs to have a plan to respond to the imminent release of this first ever look ‘under the hood’ at gender pay performance, across a vast cross section of industries and occupations. This will create a minefield of legal and reputation challenges for organisations who may (depending on the data) be seen to be laggards in gender pay performance, some quite unfairly.

As Mark Twain famously opined “There are three kinds of lies: Lies, Damned Lies, and Statistics”.

WGEA’s methodology can best be described as blunt (average pay for men divided by average pay for women) and leaves little room for context. For example, there is no differentiating between industries across different Australian states and territories, and different organisational or remuneration structures.  The United Kingdom, by contrast, takes a more nuanced approach, reporting in quarterly bands, based on seniority.

WGEA will not differentiate between, for example, a consulting firm with a high level of junior support roles (typically dominated by women) and a manufacturing business which does not.  This is hard to defend in a sound bite!

However, employers will be given the opportunity to provide an Employer Statement which explains their gender pay gap results. This will need to be carefully considered and drafted to provide much- needed context, which will otherwise be missing without any public statement.

The data will also not pay heed to shifts in performance over time, that is, those organisations which acknowledge they have a gender pay gap issue and are making inroads to address it.  Implementing meaningful change takes time to gain traction.

Importantly, WGEA is not reporting on pay equity (that is, do men and women at the same level of seniority get paid equivalent amounts) which many regard as a more insightful measure.

The Workplace Gender Equality Act 2012 (Cth) (which governs WGEA and its functions), contains provisions relating to employer non-compliance with the Act. The only power WGEA has under the Act is to name and report non-compliant employers publicly and to the Minister for Women, (currently Katy Gallagher). Any attempt to avoid the reporting obligations or potential public scrutiny will therefore be misguided.

The experience in the United Kingdom, where mandatory gender pay gap reporting has been in place since 2017, provides some useful insights into what issues arise and how organisations can prepare.

Firstly, the publication of the data generated strong media interest sparking a fresh debate on gender pay.  Companies which had never before seen public profile suddenly found themselves in the limelight and under pressure to explain their performance.  This included Australian companies with a large UK employee cohort.

Secondly, industries which performed poorly received significant focus, with a detailed trawling through the results and analysis of the drivers of underperformance.

Organisations that responded effectively were prepared well in advance and had a simple narrative to explain their results and place them in the most effective context.

Australian companies preparing to face the gender pay blowtorch need to focus on five key things:

• Demonstrate clearly, with language and actions, that they are taking gender pay equity seriously and that it is a priority across the organisation, with positive examples that support this contention.
• Have a clear statement about the support for these changes at the most senior levels of management. People need to see that this is not a ‘lip service’ attempt to deflect the issue and that there is buy-in at the highest levels of the organisation.
• Communicate strategies in place to address this issue over time and, where possible, show how these are delivering measurable outcomes over time.
• Have a plan in place well in advance – organisations need to consider who is important to communicate with and the most effective strategy to engage. For example, employees, customers, suppliers, strategic partners.
• Consider and plan for the possibility of an increase in discrimination complaints and general protections applications following the release of the gender pay gap data. While the data will provide an overall organisational score, employees now have a workplace right to ask other employees about what they get paid and there is also a prohibition on pay secrecy. This means these different data sets could be used by an employee to form the view that they are paid less than their colleagues at the same level of seniority based on their gender.

If you would like to learn more about these changes and how you can best position your organisation to respond to the publication of gender pay gap data on 27 February 2024, please contact us for further information.