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Legislative reform aims to combat workplace sexual harassment in Australia
16/08/2021
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Australia Fair Work Commission
Authors
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Joydeep Hor
Joydeep Hor (pictured) is the founder and managing principal, and Rupert Gillies is an associate, at People + Culture Strategies in Sydney

 

The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 was introduced on 24 June 2021. If passed, the Bill will amend the Fair Work Act 2009 (FW Act) and the Sex Discrimination Act 1984 (SD Act) to introduce a number of the legislative reforms recommended in the Respect@Work Report published by the Australian Human Rights Commission and endorsed (in part) by the Morrison government.

Legislative changes

Changes to the FW Act will include:

  • a modification to the existing anti-bullying regime to enable workers to apply to the Fair Work Commission for an order to stop sexual harassment in the workplace;
  • the Commission will only grant such an order if it is satisfied that sexual harassment has occurred and there is a risk of the harassment occurring in future (unlike with anti-bullying orders, there will be no requirement for the sexual harassment to be repeated behaviour);
  • introducing sexual harassment as a stated reason for dismissal; and
  • introducing a statutory entitlement to two days’ paid compassionate leave for employees who experience a miscarriage.

Changes to the SD Act will include:

  • introducing broader coverage of the SD Act to encompass interns, volunteers, self-employed workers, judges, and members of parliament and staff at all levels of government;
  • the current exemption in the SD Act excluding state public servants from its protections will be removed;
  • an extension of the timeframe to make a complaint to the Australian Human Rights Commission from six months to 24 months after alleged sexual conduct. This will allow more historical complaints to be determined;
  • introducing a prohibition against harassment on the ground of sex. Harassment on the basis of sex means any unwelcome conduct of a seriously demeaning nature towards a person harassed by reason of their sex in circumstances where a reasonable person would have anticipated that the individual would be offended, humiliated or intimidated; and
  • introducing a prohibition against victimisation (such as threatening someone or disadvantaging someone for taking action such as lodging a complaint). Victimisation can amount to unlawful discrimination (in addition to a criminal offence) under the SD Act.

Comparable jurisdictions

Workplace harassment, including sexual harassment, has become an emerging issue in many Asia-Pacific jurisdictions.

Australia’s trans-Tasman neighbour, New Zealand, has a similar legal framework for dealing with sexual harassment in the workplace. The differences between the respective legal frameworks are at the level of legislative detail and also reflect the different historical contexts and peculiarities.

For example, the sexual harassment exemptions that currently apply to public sector workers in Australia (and which will be removed by the Bill), do not exist within New Zealand’s modern sexual harassment legal framework. In this respect, the changes will bring Australia into line with New Zealand.

At a substantive level, the legal frameworks governing sexual harassment and discrimination in Australian and New Zealand workplaces are very similar. For New Zealand employers, managing the risks associated with sexual harassment (along with all other workplace risk) is a basic requirement under New Zealand’s work health and safety legislation.

Like their Australian counterparts, New Zealand employers do not have any specific obligation or positive duty to eliminate sexual harassment in their workplaces, but are subject to a general duty under health and safety legislation to recognise the risk of sexual harassment and have clear processes in place to handle them.

What does this mean for employers?

One of the most significant changes recommended by the Respect@Work Report was the introduction of a positive duty on employers to take reasonable measures to eliminate sex discrimination and sexual harassment in their workplaces and giving the Fair Work Commission enforcement powers to that end. Notably, this recommendation was not endorsed by the government and has not found its way into the Bill.

However, employers will need to gets to grips with the changes and for many this mean will mean taking action to ensure they are ready when the changes take effect. This could include reviewing policies, complaints procedures and training programmes with a view to ensuring these are “fit for purpose”, and could also include auditing the workplace culture to determine whether any changes may be required at a cultural level.

We expect the Senate will pass the Bill within the next few months and the changes will take effect later this year.