New workplace sexual harassment laws passed – (some) Respect@Work recommendations become law

After months of anticipation, the Australian Federal Government’s Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Amendment Act) has now passed both houses of Parliament. The Amendment Act adopts 6 of the 55 recommendations outlined in the Australian Human Rights Commission’s Respect@Work report which was handed down in March 2020.

What’s new?

The Amendment Act contains important reforms to the Sex Discrimination Act 1984 (Cth) (SDA) and Fair Work Act 2009 (Cth) (FW Act) to address workplace sexual harassment which include:

SDA

• New Object clause: inserting a new object in the SDA to confirm that the Act aims to achieve (so far as practicable) equality of opportunity between men and women;

• Sex Discrimination is unlawful: clarifying that harassing a person because of their sex is prohibited under the SDA. The new provision will capture serious forms of inappropriate conduct based on a person’s sex that are of a sufficiently serious nature to meet the threshold of demeaning, offensive, humiliating or intimidating conduct;

• Expanding coverage: expanding the scope of the SDA to cover State and Federal parliamentarians, the judiciary and their staff, and removing the existing exemption of state public services in the SDA. The Amendment Act also adopts the same concepts of ‘worker’ and ‘person conducting a business or undertaking’ used in workplace health and safety laws, which is aimed at ensuring all paid and unpaid workers (eg, interns, volunteers and self-employed workers) are protected from sex discrimination and sexual harassment;

• Victimisation: clarifying that a complaint of victimisation under the SDA can be considered as either a civil or criminal matter;

• Extension of timeframe to make a complaint: limiting the discretion of the Australian Human Rights Commission President to terminate a complaint if satisfied that the complaint was lodged more than 24 months after the alleged conduct (a significant increase from the present position where the discretion is enlivened if the complaint was lodged more than 6 months after the alleged conduct).

FW Act

• Stop sexual harassment orders: expanding the Fair Work Commission’s existing anti-bullying jurisdiction under the FW Act to allow the Commission to also make orders to stop sexual harassment in the workplace. As in the case of bullying, to make such an order the Commission will need to be satisfied that sexual harassment has occurred and there would be a risk of future harm;

• Sexual harassment is a valid reason for dismissal: amending s 387 of the FW Act to clarify that when determining whether a dismissal is harsh, unjust or unreasonable, sexual harassment in connection with an employee’s employment can amount to a valid reason for dismissal. This is consistent with recent changes to the Fair Work Regulations 2009 (Cth) to include sexual harassment in the definition of ‘serious misconduct’; and

• Miscarriage leave: inserting a definition of ‘miscarriage’ and enabling employees to take up to two days paid compassionate leave if they, or their spouse, has a miscarriage before a period of gestation of 20 weeks.

The Amendment Act does not implement a key recommendation of the Respect@Work report to implement a ‘positive duty’ (which the Government states already exists in workplace health and safety laws) on employers to take reasonable and proportionate steps to eliminate sexual harassment and sex discrimination in the workplace.

Next steps

The Amendment Act will commence on a date to be advised, once it receives royal assent. However, the Fair Work Commission’s anti-harassment order regime will commence two months after the Amendment Act comes into effect, allowing the Fair Work Commission time to adjust its processes.

Employers should consider reviewing their current employment practices and policies to ensure compliance with the new changes.

Please don’t hesitate to reach out to our team who would be more than happy to discuss legislative amendments, and ways to strengthen your company’s approach to workplace sexual harassment, with you.