On 10 September 2021, following the #MeToo movement and the Australian Human Rights Commission National Inquiry into Sexual Harassment in Australian Workplaces, Parliament enacted the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect@Work Act).
The Respect@Work Act, which is aimed at ensuring workers are ‘protected and empowered’, amends the Fair Work Act 2009 (Cth) (FW Act), Sex Discrimination Act 1984 (Cth) and the Australian Human Rights Commission Act 1986.
The changes reflect a zero tolerance for sexual harassment by treating sexual harassment as a workplace health and safety issue. Additionally, the Respect@Work Act serves as a catalyst for Employers to review their existing policies and implement training to ensure their workplace is a comfortable environment for all employees to be free of sexual harassment.
What is Sexual Harassment?
As now provided in section 28A of the Sex Discrimination Act 1984, sexual harassment is defined as:
- An unwelcome sexual advance;
- An unwelcome request for sexual favours; or
- Other unwelcome conduct of a sexual nature in relation to the person harassed.
Conduct will amount to sexual harassment if a reasonable person, in the circumstances, would anticipate that the harassed person might be offended, humiliated or intimidated.
Respect@Work Act’s key changes to the Fair Work Act 2009 (Cth):
- Stop orders for sexual harassment
Section 789FF of the FW Act is amended to provide that a person who has been sexually harassed at work can apply to the Fair Work Commission (FWC) for a ‘Stop Sexual Harassment Order’ in a similar way that it can for a ‘Stop Bullying Order’. The FWC must be satisfied that the harassment has occurred and that there is a future risk of the harassment occurring again, meaning this will not assist with one-off sexual harassment incidents.
- Sexual harassment as a valid reason for dismissal
Section 387 of the FW Act is amended to provide that sexual harassment is a valid reason for dismissal when an employer determines the dismissed employee has sexually harassed another person in connection with their employment
- Miscarriage leave
Sections 104 and 105 of the FW Act are amended to permitted employees to take up to two (2) days of compassionate leave if the employee, their spouse or de facto partner has a miscarriage. Miscarriage is defined as the spontaneous loss of an embryo or fetus before a period of gestation of 20 weeks and therefore does not include circumstances where miscarriage results in a stillborn child.
Respect@Work Act’s key changes to the Sex Discrimination and Australian Human Rights Commission Acts:
- Prohibition of sex-based harassment
In addition to unlawful discrimination based on sex, persons are now prohibited from harassing someone on the ground of sex.
Harassment on the ground of sex is defined by section 28AA of the Sex Discrimination Act 1984 as unwelcome conduct of a seriously demeaning nature by reason of another person’s sex, or by reason of characteristics which generally relate to persons of the same sex as the person harassed. Like for sexual harassment, a reasonable person must have anticipated that the harassed person would be offended, humiliated or intimidated.
- Expansion of application to all workers and workplaces
The definition of ‘workplace’ and ‘workplace participant’ has been expanded in line with contemporary community interpretation. This means all interns, unpaid workers, self-employed workers and other ‘non-traditional’ workers are protected against sexual harassment. Further, the exemption of public servants from these protections has been removed. As such, the Sex Discrimination Act 1984 now expressly extend to judges, members of Parliament and all public servants to allow complaints to be made by or against State or Commonwealth judicial officials.
- Expansion of liability
Any person who causes, instructs, aids, induces or permits sexual harassment or sex-based harassment is now liable under the Sex Discrimination Act 1984. This has clear ramifications for employers who can be ancillary liable if they tolerate or allow sexual harassment to occur.
- Extended time for complaints
The Australian Human Rights Commission’s discretion to terminate complaints made under the Sex Discrimination Act 1984 has been extended from 6 to 24 months. This gives complainants more time to consider and make their application.
Key Takeaways for Employers:
Employers should interpret these changes as a clear sign that there is no tolerance for sexual harassment in the workplace. Employers may now be liable for employees who sexually harass others, unless the employer can be said to have taken all reasonable steps to prevent sexual harassment from occurring.
Employer’s should be on the front foot of these changes by:
- Revising their sexual harassment policies and training, making it clear that sexual harassment is prohibited in the workplace, clearly communicating what constitutes sexual harassment, and creating support systems for victims of sexual harassment;
- Conducting a risk assessment regarding sexual harassment risks and enact a prevention plan; and
- Ensuring their leave policy encompasses miscarriage leave entitlements.