In this Employment Update we will discuss the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) that commenced operation on 10 September 2021.  We will outline the reasons behind the changes and what they mean for employers.

Background

In 2018, the Australian Human Rights Commission conducted a National Inquiry into Sexual Harassment in Australian Workplaces.  Upon completion of the inquiry, Sex Discrimination Commissioner, Kate Jenkins authorised the Respect@Work: Sexual Harassment National Inquiry Report (2020) (‘the Report’).  The Report included 55 recommendations and concluded that the “current legal and regulatory system is simply no longer fit for purpose” in terms of workplace sexual harassment”.

In response to the Report, the Federal Government released ‘A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces’ that addressed all 55 recommendations.  From the 55 recommendations, the Respect@Work legislation, along with other changes, implements six of the recommendations.

Legislative Changes

The Respect@Work legislation makes changes to the following Commonwealth legislation:

• Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’);
• Sex Discrimination Act 1984 (Cth) (‘SD Act’); and
• Fair Work Act 2009 (Cth) (‘FW Act’).

Those changes are summarised below:

Australian Human Rights Commission Act 1986 (Cth)

Victimisation – cause of action clarified

The definition of ‘unlawful discrimination’ has been amended to remove reference to the existing criminal offence relating to victimisation conduct in section 94 of the SD Act and amends the definition in the AHRC Act to include a new civil victimisation provision.

 Take-away for Employers: The amendments clarify that legislative provisions relating to victimisation can form the basis of a civil and criminal cause of action. However, it is important to note that the AHRC cannot consider criminal complaints.

Fair Work Act 2009 (Cth)

Stop Sexual Harassment Orders

A worker who is sexually harassed in the workplace will be able to apply to the Fair Work Commission (‘Commission’) for a ‘Stop Sexual Harassment Order’ (consistent with the current framework for a ‘Stop Bullying Order’).  The Commission must be satisfied that the worker has been sexually harassed at work by one or more individuals and that there is future risk of sexual harassment at work by the individual or individuals.

Note: Applications for Stop Sexual Harassment Orders have been delayed by two months (from the commencement of the legislation) to provide the Commission with time to streamline existing processes and procedures to include Stop Sexual Harassment Orders.  It is therefore anticipated that applications for Stop Sexual Harassment Orders may be made to the Commission from 10 November 2021.

Take-away for Employers:  The FWC will have the ability to make any order it considers appropriate to prevent a worker being sexually harassed at work (other than an order requiring a monetary payment).  

Confirmation that workplace sexual harassment is a valid reason for dismissal

The FW Act will specify that workplace sexual harassment is a valid reason for dismissal under section 387 of the Act.

Take-away for Employers:  Unfair dismissal legislation now expressly recognises that workplace sexual harassment can constitute a valid reason for dismissal.

Compassionate leave entitlement for miscarriage

The FW Act now includes an entitlement for an employee to take two days paid compassionate leave (two days unpaid leave for casuals), in the event that an employee or the employee’s current spouse or defacto partner suffers a miscarriage.   The definition of “miscarriage” has been included to mean “a spontaneous loss of an embryo or fetus before a period of gestation of 20 weeks”.

Note: This new entitlement to compassionate leave complements unpaid parental leave for parents who experience traumatic events during or just before taking parental leave (e.g. stillbirth, premature birth or the death of a child), as introduced in November 2020.

Sex Discrimination Act 1984 (Cth)

Promote equal opportunity

The Objects of the SD Act have been expanded to include “to achieve, so far as practicable, equality of opportunity between men and women”.

Clarify discrimination on the ground of sex

The amendments remove the reference to “involving sexual harassment” and replace with the terms; “discrimination involving sexual harassment” and “discrimination involving harassment on the ground of sex”.  Among other considerations, “harassment on the ground of sex” requires the following threshold to be met:

• That the conduct be of a seriously demeaning nature; and
• that the person harassed would be offended, humiliated or intimidated.

 Take-away for Employers: The new sex-based harassment is now an express form of unlawful conduct. 

Liability and accessorial liability

Ancillary and accessorial liability will extend to unlawful discrimination involving sexual harassment or discrimination involving harassment on the ground of sex.

Take-away for Employers: Employers should ensure that all complaints of sexual harassment or discrimination involving harassment of the ground of sex are investigated, managed and that offending conduct is addressed.

Worker and Person Conducting a Business or Undertaking (PCBU)

A “worker’ and “PCBU” are to be given the same meaning as in the Work Health and Safety Act 2011 (Cth).  This means that the protections under the SD Act will include paid workers, volunteers, contractors, self-employed, work-experience personnel, apprentices and trainees.

Take-away for Employers: Employers should consider updating existing workplace policy and procedures to reflect this expanded coverage.

Significantly broadens scope of the SD Act

Scope of the SD Act has been further expanded to provide that contraventions (and the right of complaint) will apply to judges and their employees, members of Parliament, Commonwealth, State and Territory officers and public servants.

AHRC’s discretion to terminate complaint extended

The time period for the President of the Australian Human Rights Commission to use discretion to terminate a complaint made under the SD Act has been extended from six months to 2 years.

Contact us for assistance

If you would like advice in relation to how the new Respect@Work legislation affects your business and how to minimise the risks associated with the implementation of the new laws, please contact one of our experience employment lawyers.

A link to our February Employment Update can be accessed here – Preventing workplace sexual harassment.