Respect@Work Bill Passed
On 2 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 passed both houses of Parliament and is currently awaiting royal assent. This Bill enacted many recommendations made by the Australian Human Rights Commission in its Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report.
The Respect@Work report released to the public in March 2020 found that the current legal and regulatory system is insufficient to effectively address workplace sexual harassment which is prevalent in Australian workplaces.
In seeking to prevent workplace sexual harassment, the Bill has amended the Sex Discrimination Act 1984 (Cth), the Fair Work Act 2009 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) such that:
Changes in the Sex Discrimination Act and Australian Human Rights Commission Act 1986
- Sex based harassment is clarified as being expressly prohibiting under the Sexual Discrimination Act in addition to sexual harassment.
- Harassment on the ground of sex is defined as unwelcome conduct of a seriously demeaning nature by reason of the harassed person’s sex (or a characteristic that is generally imputed or appertain to the person’s sex) in circumstances where a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated. This test aligns with the existing test for sexual harassment.
- The Act outlines a number of circumstances to be taken into account when determining whether harassment on the ground of sex has occurred including the seriousness of the conduct and the relationship between the person engaging in the conduct and the person harassed.
- Protection from sexual harassment and harassment on the ground of sex is extended to all workers, including interns, volunteers, self-employed workers, and government employees.
- An act of victimisation against another person is unlawful and can now give rise to civil proceedings under the Sex Discrimination Act in addition to criminal proceedings.
- It is unlawful to cause, instruct, induce, aid or permit another person to engage in sexual harassment and harassment on the ground of sex.
- Employees now have 24 months to lodge a sexual harassment complaint with the Australian Human Rights Commission instead of 6 months.
Changes in the Fair Work Act
- It is recognised that sexual harassment is a workplace health and safety issue like bullying. Where sexual harassment has occurred, victims can apply to the Fair Work Commission to make orders to stop sexual harassment at the workplace.
- Sexual harassment is clarified as being a valid reason in determining whether a dismissal was harsh, unjust or unreasonable under the Fair Work Act.
- Employees may take up to two days of compassionate leave if they, or their partner, suffers a miscarriage. This leave will be paid for permanent employees, but unpaid for casual employees.
Employers should ensure that risk measures are put in place at the workplace to prevent workplace sexual harassment such as implementing a workplace policy on bullying, discrimination and harassment. Any workplace sexual harassment complaints or incidents should be addressed promptly and seriously.
If you have any questions in relation to this article, MST Lawyers’ Employment Law team can help you. Please contact us today by email or by phone +61 3 8540 0200.