In March 2020 Australia’s sex discrimination Commissioner, Kate Jenkins, tabled the Respect@Work report to the Government (Report) outlining the multifaceted response required for Australia to tackle sexual harassment and sex discrimination in the workplace.
The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill) was introduced in June 2021 and broadly reflects the Government’s response to the Report, implementing some (but not all) of the Report’s recommendations. The Bill proposes several amendments to the Fair Work Act 2009 (Cth) (FW Act), Sex Discrimination Act 1984 (Cth) (SDA), and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
In this insight, we provide an overview of the Bill’s proposed changes.
The Fair Work Act
Permanent employees would be able to take up to two days of paid compassionate leave if the employee, or the employee’s current spouse or de facto partner, has a miscarriage.
While decisions of the Fair Work Commission have previously found sexual harassment to constitute a valid reason for dismissal, this would be expressly stated in the FW Act in the context of determining an unfair dismissal.
Orders to prevent sexual harassment
The existing anti-bullying jurisdiction of the FW Act would be expanded to include “sexual harassment” in all definitions of bullying. A ‘stop sexual harassment order’ would be available under the existing anti-bullying jurisdiction of the FW Act where an individual has been ‘sexually harassed at work’. Similar to bullying orders, no financial compensation could be awarded and there must be a risk of the harassment occurring again at the time the orders are made. This means that former employees would not be eligible to seek an order. This proposed amendment would also be retrospective in operation meaning that an act or acts of sexual harassment occurring prior to the commencement date could form the basis of or be included in an application.
The Sex Discrimination Act
A new prohibition against “harassment on the ground of sex” would be added to the sexual harassment provisions of the SDA. This expands the SDA’s application to different types of conduct not previously caught, including harassment that is based on an individual’s sex but is not necessarily sexual in nature.
The application of harassment laws would be broadened to include:
- persons previously not covered, including volunteers, interns and the self-employed. It is proposed that this is achieved by adopting the definition of “Persons Conducting a Business or Undertaking” (PCBU) and “Workers” from the model Work Health and Safety laws;
- all members of parliament, judges and public servants for both Federal and State Governments; and
- harassment in connection with the person being a worker, meaning that the person being harassed does not need to be performing work when the harassment occurs.
The accessorial liability provisions would apply to acts of another person who caused, instructed, induced, aided, or permitted sexual or sex based harassment.
Clarifies that civil actions for victimisation in relation to sexual harassment could also be brought in the Federal Court and Federal Circuit Court.
The Australian Human Rights Commission Act
The AHRC Act would be amended to extend the time a complaint can be made within from 6 months to 24 months.
What should employers do next?
The Bill has been referred to the Senate education and Employment Legislation Committee for inquiry and its report is due by 6 August 2021. A vote on the Bill would be expected shortly thereafter.
While the Bill does not (as recommended by the Report), adopt a positive duty for employers to take reasonable measures to eliminate sexual harassment and sex discrimination in the workplace, if passed into law, it will require changes to employer’s workplace behaviour policies and procedures to:
- include the new prohibition on non-sexual sex-based harassment;
- refer to the broader range of individuals that can be subject to harassment laws; and
- ensure the effectiveness of their complaints procedures to address the above changes.