Closing Loopholes Amendment to Fair Work Act ā€“ New discrimination protections

18 January 2024

The first part of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) is now in force, modifying the Fair Work Act 2009 (Cth) (the Act) with some provisions taking immediate effect. One of these is the extension of protections against discrimination to persons who have experienced family and domestic violence. 

The Protections 

Modern awards are prohibited from including terms which are discriminatory for reasons listed in section 153 of the Act, and this list now includes subjection to family and domestic violence as a reason for which someone cannot be discriminated against. Likewise, section 195(1) prevents any such discriminatory clauses being included in an Enterprise Agreement. 

The protections against adverse action based on attributes listed in section 351(1) of the Act has been extended to include protection against adverse action taken against an employee because they have been subject to family and domestic violence. 

Further, the general Fair Work Commission (FWC) responsibility to help prevent and eliminate discrimination now extends to discrimination on the basis that an employee has been or is currently subject to family and domestic violence. This is a broad direction to the FWC to consider discrimination when exercising their function. 

The Impact of the Protections  

The effect of these changes is that now workers may make an application to the FWC. Where they believe adverse action was taken due to one of these protected characteristics, a worker may make a general protections application to the FWC. They may make this application whether they have been dismissed. 

Employers should review their policies and procedures to ensure that there are no risks they may inadvertently discriminate against an employee due to their being subjected to family and domestic violence. It is important that employers ensure that all management staff are aware of these changes and the practical implications of this. 

Should you have any questions or concerns about these changes, ECA Legal is available to provide 30 minutes free legal advice to all ECA WA members. 

Disclaimer: This summary is a guide only and is not legal advice. For more information, call ECA Legal on (08) 6241 6129 or email ecalegalwa@ecawa.org.au