Significant changes are on the horizon for Employment Law. The first change involves extending the limitation period for an employee to raise a personal grievance for sexual harassment. The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill was passed on 7 June 2023 and came into force on 8 June 2023. The second change, the Crimes (Theft by Employer) Amendment Bill, concerns the criminalisation of wage theft of employers and has now been formally introduced to the house for debate.
Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill.
Under the new Amendment Bill, the limitation period for an employee to raise a personal grievance for sexual harassment has been extended from 90 days to 12 months. The 90-day limitation continues to apply for all other personal grievances.
The amendment intends to improve the process for sexual harassment victims by providing more time for them to consider whether to bring a personal grievance. Section 114 of the Employment Relations Act, which provides for an employee’s notification period, amends the definition of an “employees notification period” to mean, in regards to a sexual harassment allegation an employee, “…. the period of 12 months beginning with the date on which the action alleged to amount to the personal grievance occurred or came to the notice of the employee whichever is later.”
Retrospectivity of the Bill was clarified by the Select Committee’s Final Report which outlined that the enlarged 12-month period only applies where the alleged sexual harassment occurred or came to notice of the employee on or after the amendment comes into force. Essentially, existing sexual harassment claims will be held to the previous 90-day period.
Employment Agreements should be updated to align with the ERA’s “plain language” explanation requirement, including specific reference to the 12-month period for raising a personal grievance on the grounds of sexual harassment.
Further, employers should revise their workplace policies and notify employees of the extension of time for raising a personal grievance for sexual harassment. It would also be suitable for employers to remind their employees of workplace expectations and values.
Crimes (Theft by Employer) Amendment Bill
The second Bill of note is the proposal to clarify that non-payment of an employee’s wages is considered theft under the Crimes Act 1961.
The Bill seeks to impose stricter (and clearer) consequences on employers who intentionally do not pay wages owed to employees. The Bills policy statement provides that present provisions of theft by a person in a special relationship are insufficient to deal with employer wage theft. Wage theft by employers can include unlawful withholding of wages, salaries and other monetary entitlements.
The Amendment Bill proposes to insert a new section (20AA) to the Crimes Act 1961, which outlines that where an employer intentionally fails to pay an employee their entitlements under their employment agreement or otherwise required by law (i.e. Holidays Act 2003, Minimum Wages Act 1983 or Wage Protection Act 1983) that is an offence which will attract a penalty of imprisonment not exceeding one year and/or a fine not exceeding $5000 if the employer is an individual or a fine not exceeding $30,000 if the employer is an entity.
Failure to pay an employee their wages is also a breach of the Employment Relations Act 2000.
The Bill has yet to have its first reading but has been formally introduced to the House. While the Bill is in the early stages, the move to criminalize the breach is important to note for employers.