On 24 June 2021 the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill) was referred to the Education and Employment Legislation Committee (Committee) for inquiry and report. As part of its inquiry, the Committee received 55 submissions from various stakeholders and individuals. On 6 August 2021, the Committee handed down its report (Committee Report) recommending that the Bill be passed.
The Bill made its way before the Senate as a result of the Federal Government’s Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (Roadmap). The Roadmap endorsed a number of the recommendations made by the Australian Human Rights Commission’s Respect@Work Report, including several legislative amendments which the Bill aims to implement.
What are the proposed changes to the Sex Discrimination Act?
The Sex Discrimination Act (SD Act) will significantly expand in terms of the conduct and persons it applies to. The Bill introduces a prohibition against “harassment on the grounds of sex”, in addition to the existing prohibition against sexual harassment. This recognises that harassment, even if it is not “conduct of a sexual nature”, can still be unlawfully engaged in on the grounds of a person’s sex. A new objects clause will also be included to provide that an express aim of the SD Act is to achieve equality of opportunity between men and women.
The Bill also extends the scope of the SD Act to ensure that all “workers” and “workplaces” are protected by adopting terminology used in Work Health and Safety laws. The outcome of these changes is to broaden the scope of the SD Act’s coverage and ensure that interns, volunteers and self-employed workers are protected by the sexual harassment provisions of the SD Act. The scope of the SD Act will also be clarified regarding its coverage of public servants, including but not limited to members of parliament, judges and formerly exempt state public servants in order to align the Act with other federal anti-discrimination laws.
Finally, the Bill, by amending section 46PH(1)(b) of the Australian Human Rights Commission Act, will extend the time period for bringing a complaint from 6 to 24 months (after which time it may be dismissed). The Bill further provides that in addition to making a criminal complaint under the SD Act, complainants may commence civil proceedings regarding to the same conduct.
What are the proposed changes to the Fair Work Act?
The Bill extends the Fair Work Commission’s (FWC) current jurisdiction over workplace bullying matters to also cover workplace sexual harassment matters. In addition to the FWC’s powers to make an order to stop bullying, the FWC will have new powers to make an order to stop sexual harassment in the workplace. These orders are aimed at preventing future sexual harassment and will only be made where there is a risk of harassment occurring again. The FWC will be able to make an order in relation to sexual harassment in accordance with the amendments even where the conduct occurred prior to the amendments being implemented.
A new legislative note will be added into the Fair Work Act (FW Act) to make it clear that sexual harassment in connection with the employee’s employment can be a valid reason for dismissal. As a consequence, the meaning of serious misconduct in the Fair Work Regulations will be modified to include instances of sexual harassment. We note, sexual harassment would already be considered serious misconduct regardless of whether it is added to the definition.
The Bill also extends an employee’s entitlement to two days of compassionate leave to include occasions where the employee, or the employee’s current spouse or de facto partner, has a miscarriage.
While numerous parties submitted to the Committee that there should be a positive duty on employers to take reasonable steps to prevent sexual harassment, this obligation was not endorsed in the Committee Report (noting they already exist as part of any employer’s duty of care).
Where to now?
Recommendations were put forward as part of the Committee Report by three groups; the Committee, the dissenting Labor Senators, and the Australian Greens Senators with the following overall recommendations being made:
- The Government defer the commencement of the amendments that extend the anti-bullying jurisdiction of the FWC until no earlier than two months after royal assent.
- The Government make further legislative amendments to clarify that victimisation under the Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth), and the Age Discrimination Act 2004 (Cth), can also form the basis of a civil action for unlawful discrimination.
- The Committee recommends that the Bill is passed.
On the basis of these recommendations, employers can expect that the Bill will be passed, although it is likely that further minor amendments will be made to the Bill before it receives royal assent.
What does this mean for employers?
While the broadening of the legal definitions and the introduction of a new jurisdiction with the FWC, will increase risk to employers, all employers and workplaces should be taking proactive steps to prevent sexual harassment in the workplace. In addition to having workplace policies and safety management plans and systems, employers should:
- Identify any risk factors in the workplace which may increase physical and psychological risks (including sexual harassment)
- Conduct training including bystander training to help employees understand how to identify sexual harassment or inappropriate conduct that is of a sexual nature or gender based
- Review sexual harassment policies and update them to reflect the broadened definitions
Please reach out if you need assistance undertaking training or reviewing your current policies and procedures.