On 24 June 2021 the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill) was introduced to strengthen protections against sexual harassment and other forms of sex discrimination in the workplace. We explore some of the key amendments proposed under the Bill and the impact it will have on how employers respond to and prevent sexual harassment in the workplace.
The Respect@Work Report
On 29 January 2020, Sex Discrimination Commissioner Kate Jenkins, released the Respect@Work Report: National Inquiry into Sexual Harassment in Australian Workplaces (the Respect@Work Report). The Report found 39% of women and 26% of men had experienced sexual harassment at work, and that it costs the Australian economy $3.8 billion each year.
The Respect@Work Report made 55 recommendations to comprehensively reform how Australia’s anti-discrimination and industrial relations legislative frameworks respond to and prevent sexual harassment in the workplace.
The Bill aims to implement a number of the recommendations set out in the Respect@Work Report by amending the following legislation:
- Sex Discrimination Act 1984 (Cth) (SD Act);
- Australian Human Rights Commission Act 1984 (Cth) (AHRC Act); and
- Fair Work Act 2009 (Cth) (FW Act).
The Proposed Amendments
Sex Discrimination Act
Prohibiting sex-based harassment
- The Bill would create a new object clause to clarify that in addition to the elimination of discrimination and harassment, the SD Act aims to achieve, so far as practicable, equality of opportunity between men and women.
- The Bill proposes to insert a new provision in Division 3 of Part II of the SD Act to make it expressly clear that it is unlawful to harass a person on the basis of their sex.
- ‘Sex-based harassment’ would be defined as an unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances which, a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.
Expanding the coverage of the SD Act
The Bill would extend the coverage of the SD Act to:
- “Workers” and “Persons Conducting a Business or Undertaking” which ensures interns, volunteers and self-employed works are protected from harassment.
- All members of parliament, judges and public servant for both Federal and State Governments;
- Harassment in connection with the person being an employer or employee which means that the person being harassed does not need to be performing work when the harassment occurs.
Accessorial Liability
- The Bill would extend accessorial liability (or third-party liability) under the SD Act in relation to sexual or sex-based harassment.
- Section 105 of the SD Act currently provides that a person who ‘causes, instructs, induces, aids or permits’ another person to do an unlawful act of discrimination is taken to have engaged in the same conduct.
- This means that a person can be held legally responsible for the acts of another person if they are found to have caused, instructed, induced, aided, or permitted to harass another person on the ground of sex.
Australian Human Rights Commission Act
New Victimisation Provision
- Section 46PO of the AHRC Act currently provides the avenue for initiating civil proceedings in relation to unlawful discrimination under the SD Act.
- The definition of unlawful discrimination under s 46PO currently refers to a criminal offence of victimisation under subsection 94(1) of the SD Act.
- The Bill would amend the definition of ‘unlawful discrimination’ in the AHRC Act to replace the reference to subsection 94(1) with a new provision under the SD Act making it ‘unlawful for a person to commit an act of victimisation against another person’.
- If such a complaint is terminated by the AHRC, civil proceedings can be commenced in the Federal Court or Federal Circuit Court of Australia.
- The proposed amendment would reconcile existing legal uncertainty about whether victimisation can form the basis of a civil action for unlawful discrimination.
Extended time for complaints
- Currently, a complaint under the SD Act can be terminated by the President of the AHRC if more than 6 months has passed after the alleged unlawful took place.
- The Bill would extend this timeframe to more than 24 months since the alleged unlawful conduct took place.
Fair Work Act
Availability of ‘stop orders’
- The Bill would amend the FW Act to clarify that a worker who is sexually harassed at work can apply to the Fair Work Commission (FWC) for an order to stop the harassment.
- This proposed amendment mirrors the FWC’s existing jurisdiction to make stop orders in relation to bullying in the workplace.
Sexual harassment a valid reason for dismissal
- The Bill would amend the FW Act to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable.
Miscarriage Leave
- Currently the FW Act provides 2 days’ paid compassionate leave when a member of the employee’s immediate family or household contracts or develops a personal illness, or sustains a personal injury, that poses a serious threat to their life or dies.
- The Bill would extend this minimum entitlement to ensure that a miscarriage constitutes grounds for compassionate leave.
- The proposed amendment would build upon the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020, which introduced improved access to unpaid parental leave and compassionate leave for families dealing with the trauma of stillbirths, infant deaths and premature births.
Final Thoughts
The Bill does not seek to impose a positive obligation on employers to eliminate sexual harassment, sex discrimination and victimisation in the workplace. However, the proposed amendments will significantly affect the way employers manage sexual harassment complaints and will force employers to scrutinise the efficacy of their existing processes.
The Bill has been referred to the Senate Employment and Education Committee for review. An advisory report on the Bill will be published by the Committee on 6 August 2021. The Bill will then be considered by Parliament.
While the Bill has yet to be passed, it serves as a stark reminder to employers to review their current policies and procedures to ensure they adequately protect against sexual harassment and comply with workplace health and safety and discrimination laws.
For further information and assistance contact our employment team.
Article prepared by: Margaret Gotsopoulos, Graduate
