Reinforcing Respect at Work: Impending legislative reforms to address and prevent workplace sexual harassment

Following months of intense public attention and debate regarding workplace sexual assault and sexual harassment, including within the highest echelons of the Australian government and legal system, the Australian Government has now released its long-awaited response to the landmark Respect@Work report delivered by the Australian Human Rights Commission to the Government in March 2020. 

The Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (roadmap) addresses all 55 of the recommendations proposed in the Respect@Work report to varying degrees. It pledges further Commonwealth funding to support initiatives to address workplace sexual harassment, and flags a number of amendments to legislation to strengthen protections for employees against harassment in the workplace. 

In particular, the Government has flagged that it will: 

• amend  the Federal Sex Discrimination Act 1984 (Cth) and the Fair Work legislation to expressly prohibit sexual harassment;
• amend the Sex Discrimination Act 1984 (Cth) to clarify that persons can be found accessorily liable for sexual harassment under that Act; 
• amend the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth) to confirm that sexual harassment is ‘serious misconduct’ within the meaning of the legislation and can be conduct amounting to a valid reason for dismissal (codifying a position commonly adopted by Courts and Tribunals); 
• include sexual harassment as a ground for employees to apply for a ‘stop bullying order’ under the Fair Work Act 2009 (Cth). 

The Government roadmap does not accept a key recommendation of the Respect@Work report to implement a further positive duty on employers to take reasonable and proportionate steps to eliminate sexual harassment and discrimination in the workplace. The roadmap suggests that the positive duty is unnecessary as employers already have an obligation under workplace health and safety laws to take reasonable steps to provide a safe workplace. 

The roadmap strongly encourages companies to engage with the Workplace Sexual Harassment Council to establish new initiatives and policies to address sexual harassment in  workplaces.

We expect draft legislation giving effect to the proposed changes to be introduced in the Australian parliament by June 2021. 

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