On 10 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (the Amendments) took effect, implementing modifications to the Fair Work Act 2009 (Cth) (FWA), the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and the Sex Discrimination Act 1984 (Cth) (SDA).
The Amendments represent the Government’s response to a number of recommendations in the Australia Human Rights Commission’s Respect@Work report authored by Sex Discrimination Commissioner, Kate Jenkins (the Report).
A summary of the Amendments include:
- Clarifying that harassing a person on the basis of sex is prohibited under the Sex Discrimination Act (SDA), by explicitly making this clear on the face of the Act;
- Protecting more workers from sexual harassment by broadening the scope of people covered by the SDA;
- Clarifying that a complaint of victimisation can be considered as either a civil or criminal matter;
- Extending the timeframe for which a complaint can be made to the Australian Human Rights Commission;
- Enabling the FWC to make orders to stop sexual harassment in the workplace; and
- Clarifying that sexual harassment constitutes serious misconducting and can therefore be a valid reason for summary dismissal under the FWA.
Additionally, the Amendments also provide compassionate leave entitlements in relation to certain employees affected by miscarriage.
It is theorised that these changes reflect an increased recognition that sexual harassment is a workplace health and safety issue in the same manner that bullying has previously been recognised.
Amendments to the SDA
The Amendments make a number of changes to the SDA, including the introduction of a new objective as follows:
“to achieve, so far as practicable, equality of opportunity between men and women.”
While appearing to be a step back from the Report’s recommendation of ‘substantive equality’, the updated object aimed at assisting employees and employers, as well as the Courts and community, understand the underlying purpose of the legislation.
In addition to modifying the object, the SDA now also:
- Is inclusive of all members of State and Federal Parliament, State and Territory public servants, and judges as well as their staff and consultants;
- Applies to any ‘worker’ and “person conducting a business or undertaking” (which extends to include interns, apprentices, volunteers and self-employed individuals);
- Includes harassment that occurs in connection with the person being an employer or employee. Accordingly, the person who is harassed does not need to be performing work when the harassment occurs to be covered; and
- Covers any person who “causes, instructs, induces, aids or permits sexual harassment and sex-based harassment”, thereby extending provisions to accessorial liability.
Further, civil remedy provisions have also been introduced to the SDA which allows an individual who is threatened or subjected to detriment to pursue a civil claim. Serious instances of victimisation can still be subject to criminal proceeding initiated by the Australian Federal Police.
Finally, complaints under the SDA can also no longer be terminated on the grounds of time lapse until 24 months have passed since the unlawful discrimination took place. This allows complainants more time to contemplate their claim, consequently reducing procedural barriers.
Defining sexual harassment in the FWA
In addition to the changes within the SDA, the Amendments also make a number of modifications to the FWA.
Firstly, the Amendments introduce a definition of sexual harassment. According to this definition, a person sexually harasses another person if they:
- Make an unwelcome sexual advance;
- Make an unwelcome request for sexual favours; or
- Engage in other unwelcome conduct of a sexual nature.
For a person to have sexually harassed someone, it has to be reasonable to expect that in the situation, there’s a possibility that their behaviour would offend, humiliate or intimidate the other person.
Stop sexual harassment orders
As well as setting the parameters of what constitutes sexual harassment, the Amendments implement an expansion of the existing FWA provisions dealing with orders to stop bullying at work to include orders to stop sexual harassment. An eligible worker who believes that they’ve been sexually harassed at work can apply to the Fair Work Commission (FWC) for an order to stop sexual harassment. The intention of this provision is to prevent the risk of future harm, rather than just provide for remedy once the harm has already occurred.
Eligible workers can make these applications from 11 November 2021.
The Amendments also provide clarification that sexual harassment at work is a form of serious misconduct and can be a valid reason for dismissal under the FWA. Accordingly, serious misconduct can result in dismissal without notice.
Miscarriage and compassionate leave
In addition to the provisions relating to sexual harassment, the Amendments also extended compassionate leave to include miscarriage. Employees can take up to two days of paid compassionate leave (unpaid for casuals) if they, or their current spouse or de facto partner, has a miscarriage.
Employees are also entitled to take compassionate leave if the infant was, or would have been, an immediate family or household member of the employee.
Ultimately, the Amendments are an indicator that tolerance for sexual harassment in the workplace is at a historical low. Further the Amendments attempt to allocate more tools to employees to seek help in relation to such conduct. Accordingly, employers cannot put their head in the sand in relation to these types of issues and need to ensure they offer a safe workplace to all employees.
With the Amendments in mind, what can employers do to prevent sexual harassment occurring within their workplace?
Firstly, it is crucial to have a clear sexual harassment policy in place and ensure all employees are well educated on that policy. This will ensure that there is a clear understanding of what is and what is not acceptable within the workplace.
Secondly, if a complaint is raised regarding this type of conduct, action needs to be fast and well thought out minimise risk of harm to the subjected employee. Employers therefore need to have a clear, throughout procedure in place to appropriately address potential complaints of sexual harassment.
In some instances, sexual harassment in the workplace may extend beyond regular work locations and/or operating hours, for example a work-related function. Accordingly, employers should ensure employees clearly understand what the expectation is in relation to work/social functions, especially when the event involves alcohol consumption. An employer may be vicariously liable for an employee’s actions; therefore, it is important to understand your obligations.
Saines Legal is a full-service employment law firm available to provide tailored advice and guidance in relation to any workplace issues. We have also developed a small business retainer package designed to provide complete employment support at a fixed weekly fee, affording our small business clients complete peace of mind regarding workplace legal obligations and insurance against the costs of any unexpected issues. Do not hesitate to contact us via firstname.lastname@example.org or (07) 3324 1055, to organise a consultation.
The contents of this article are general in nature and is for information purposes only. The content of this article does not constitute legal advice and should not be used as such. Should you require assistance with a specific legal matter, it is recommended that you seek appropriate advice.
Authors Emma Marshall (Lawyer) and Nigel Saines (Principal).