WRITTEN BY Bill Pardy
The current Federal Labor Government introduced a series of key industrial relations changes in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (the SJBP Act) in December 2022.
The Secure Jobs, Better Pay Review: Draft Report (the SJBP Review Draft Report) dated 31 January 2025 was released on 3 February 2025. The SJBP Review is occurring as part of the SJBP Act and the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (the Closing Loopholes Act).
The SJBP Review Panel (comprising Emeritus Professor Mark Bray and Professor Alison Preston) is tasked with assessing the impact and effectiveness of the changes made to the Fair Work Act 2009 (the FWA) by the SJBP Act and the Closing Loopholes Act.
The SJBP Review Draft Report issued last week set out 19 draft recommendations for the Government to consider. Of particular interest to us was draft recommendation 15, which stated:
The Australian Government should undertake further research and consider whether it is appropriate to extend the protected attributes in the Fair Work Act to cover perimenopause and menopause, as well as other reproductive health issues.
In discussing the above recommendation, the SJBP Review Draft Report noted that the anti-discrimination measures of the FWA were intended to ensure that characteristics and identities of employees do not affect their experiences, professional development and progress in the workplace. Further, the anti-discrimination measures introduced in the SJBP Act (to include breastfeeding, gender identity, or intersex status as protected attributes) were intended to improve job security and address ongoing gender disparities in the workplace.
During the current SJBP Review, submissions have been made (largely from unions and community groups) that the 2022 SJBP Act reforms did not go far enough and should also include ‘reproductive health’ as a protected attribute.
This suggestion arose in the context of a ‘growing body of evidence about women’s negative workplace experiences during perimenopause and menopause’,[1] and is ‘part of a broader discussion about reproductive health impacts on workforce participation’.[2]
The potential inclusion of ‘reproductive health’ generally, or perimenopause and menopause specifically, as protected attributes in the FWA, could in our view have a positive impact in several contexts.
We note there is a growing recognition of the impact of reproductive health issues on participation and performance in the workforce. The Australian Senate Standing Committee’s Report “Issues Related to Menopause and Perimenopause” issued in September 2024 (the SSC Report) explored these matters.
Briefly, the SSC Report found that menopause and perimenopause had substantial impacts on:
The SSC Report also noted many women were ‘afraid of being financially reliant or dependant on their family members’,[4] because of limited workforce participation, due to symptoms of menopause and perimenopause. The SSC Report also discussed the prevalence and persistence of stigma surrounding the experience of menopause and perimenopause within the workplace. The SSC Report stated affected people ‘may experience multiple layers of potential workplace discrimination through the functioning of ‘gendered ageism’’,[5] contributing to reluctance in disclosing experiences of troublesome symptoms, reluctance in requesting reasonable adjustments in the workplace and even departures from the workforce altogether.[6]
Based on the SSC Report, the inclusion of menopause and perimenopause as protected attributes in the FWA could markedly increase support and provide a measure of equity for those experiencing them.
To that end, the SSC Report made Recommendations 6 and 7 as follows:
The Committee recommends that the Australian Government consider amendments to Section 65 of the Fair Work Act 2009 to ensure women can access flexible working arrangements during menopause.
The Committee encourages Australian workplaces develop perimenopause and menopause workplace policies in consultation with their employees.
The SJBP Review Draft Report essentially agreed with the SSC Report in making draft recommendation 15 (noted above). The SJBP Review Draft Report argued that a focus on the inclusion of perimenopause and menopause as a protected attribute for anti-discrimination purposes would ‘enliven the right to request flexible working arrangements, or…additional leave entitlement[s]’.[7]
However, the SJBP Review Draft Report conceded that, at this stage, further research and consideration was required before recommending specific legislative amendments.
One other aspect of draft recommendation 15 of significant interest to us was the reference to “other reproductive health issues” in the recommendation.
People of all genders can face reproductive health issues; however, typically, they disproportionately impact upon women’s work and livelihoods. Some factors that affect people facing reproductive health issues and who may be participating in assisted reproduction, for example, include:
Given the impact of reproductive health (as expressed by the statistical measure of birth rates per capita) upon areas as diverse as politics, economics, demography, society and equity, recognition of the impact of “other reproductive health issues” is in our view both crucial and an idea whose time will inevitably come, if it has not already arrived.
It is important that employers and employees remain informed about potential changes to the FWA, and what their future obligations and entitlements may include.
Amongst several other recommendations, the SJBP Draft Review Report has placed an expansion of the protected attributes under the FWA firmly on the Australian employment relations agenda.
Whether this will result in formal action will likely depend on the outcome of the 2025 Federal election. However, regardless of the future government’s ideological stance, we consider there are strong public policy reasons to adopt draft recommendation 15 and to extend the protected attributes in the FWA as suggested. With the growing recognition of these issues, we anticipate further changes in the employment and industrial relations space may be on the horizon.
The current SJBP Review is open for a brief window for further submissions on the Draft Report until 16 February 2025. The SJBP Review Final Report is due to be released on 31 March 2025.
This article was assisted by BAL Lawyers, Law Clerk Jemima Green.
If you have any questions or queries about the information in this summary, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999.
[1] https://www.pm.gov.au/media/delivering-secure-jobs-and-better-pay, page 235.
[2] Ibid, page 235.
[3] SSC Report page 47.
[4] Ibid, page 48.
[5] Ibid, page 64.
[6] Ibid, page 65.
[7] Ibid.