On 24 June 2021, the Federal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill), which aims to strengthen and simplify the legislative frameworks that protect workers from sex discrimination and sexual harassment in the workplace.
The Bill responds to recommendations of the Respect@Work Report published by the Australian Human Rights Commission (AHRC) following the 2018 National Inquiry into Sexual Harassment in Australian Workplaces.
If passed, the Bill will amend the Sex Discrimination Act 1984 (Cth) (SD Act) and the Fair Work Act 2009 (Cth) (FW Act) and Australian Human Rights Commission Act 1986 (AHRC Act).
Summary of Key Changes proposed by the Bill
• Orders to Stop Sexual Harassment: The existing anti-bullying jurisdiction in the FW Act would be amended to allow the Fair Work Commission to make an order to stop sexual harassment in the workplace. Like stop bullying orders, the focus would be on preventing harassment, not providing financial compensation. In contrast to existing stop bullying orders, the conduct would not need to be repeated to qualify. This proposed amendment aims to afford those who have suffered workplace sexual harassment with access to a fast, low cost, informal mechanism to deal with complaints.
• Harassment on the Grounds of Sex: Sex-based harassment would be prohibited under the SD Act, which would be defined as unwelcome conduct of a seriously demeaning nature by reason of the person’s sex, in circumstances which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. The Bill would also make it unlawful to harass a person because of a physical characteristic that relates to sex (such as a woman’s pregnancy) or that society generally imputes to a particular sex (such as carer’s responsibilities). This is relevant to both employees, and employers who can be held vicariously liable for the conduct of their workers.
• Liability of Third Persons: Ancillary liability provisions would be extended to sexual harassment and harassment on the grounds of sex, meaning for example, a supervisor may be held liable as an ‘accessory’ to the sex-based harassment if they aided and permitted its continuation.
• Valid Reason for Dismissal: The FW Act would be amended to clarify that sexual harassment can provide a valid reason for dismissal in determining whether a dismissal was ‘fair’ for the purposes of the unfair dismissal regime. The Government has also indicated that it will amend the definition of ‘serious misconduct’ in the Fair Work Regulations to include sexual harassment.
• Expansion of Operation and Application of SD Act: The protection from sexual harassment under the SD Act would be expanded to include those not previously covered such as interns, volunteers, and self-employed workers. It also clarifies that the SD Act would applies to judges, staff and consultants employed under the Members of Parliament (Staff) Act 1984 (Cth).
• Victimisation: The Bill would provide that victimisation (such as threatening or subjecting a person to detriment for taking action such as lodging a complaint) can form the basis of a civil action for unlawful discrimination (in addition to a criminal complaint) under the SD Act.
• Paid Compassionate Leave for Miscarriages: The Bill would clarify that women who experience a miscarriage, and their partners, will have access to existing rights for up to two days of compassionate leave.
• Extension of time to make a sexual harassment complaint: It is proposed that the AHRC Act be amended to give the President of the AHRC discretion to terminate a complaint that relates to the SD Act more than 24 months after the alleged acts, omissions or practices took place (currently it is six months). According to the Explanatory Memorandum to the Bill, this provision has been inserted in response to recognition that complaints initiated under the SD Act, including for sexual harassment, may be difficult for a person to lodge within six months.
The Bill has been referred to the Senate Education and Employment Legislation Committee which will report on 6 August 2021. While the Bill has not yet been passed, we recommend that you put the reforms on your radar as the changes have broad support from both sides of Parliament. We will monitor the Bills progress and provide an update on any developments.
How we can help
Moores works with organisations across Australia to prevent sexual harassment and discrimination in the workplace, and supports organisations to respond swiftly and sensitively when complaints or issues arise. Please do not hesitate contact us if you would like to discuss how we can support your organisation.
The content of this article is intended to provide general guidance only. Specialist advice should be sought about your specific circumstances.