Workplace sexual harassment has recently been in the spotlight due to allegations against the former Attorney General, Christian Porter and other officials. The Government has faced increased pressure to review workplace sexual harassment laws, which some consider to be outdated and no longer fit for purpose.
The Respect@Work Report
Over a year ago, the Sex Discrimination Commissioner Kate Jenkins released a report to the Government titled the Respect@Work Report. This Report outlined 55 recommendations that should be implemented into our legal frameworks in relation to sexual harassment arising in the workplace.
A primary focus on the report was to suggest amendments be made to the Fair Work Act 2009 (Cth) and the Sex Discrimination Act 1984 (Cth) to shift the current complaints-based system to one that places the onus on the employers to proactively prevent and eradicate sexual harassment in the workplace.
Some of the key suggested amendments that were outlined in the report included:
- State public servants should be liable for sexual harassment in the workplace (they are currently exempt under the Sex Discrimination Act 1984 (Cth));
- Amending the Fair Work Act 2009 (Cth) to:
- include sexual harassment as a valid ground for dismissal;
- introduce a ‘stop sexual harassment order’ which is equivalent to the current ‘stop bullying order’
- Amending the Fair Work Regulations 2009 (Cth) include sexual harassment under the definition of ‘serious misconduct.’
- Changing the objectives of the Sex Discrimination Act 1984 (Cth) to include to ‘achieve substantive equality between women and men’.
Will the recommendations be implemented?
The Government has recently indicated that it will implement many of the recommendations in the report, including those in relation to dismissals for sexual harassment and the definition of serious misconduct.
In some circumstances, it has indicated that it will go further than what the report recommends, for example by clarifying that the scope of the Sex Discrimination Act 1984 (Cth) extends to judges and MPs, as well as removing the current exemption for state public servants.
In respect of the recommendation to introduce a positive duty on employers to take measures to eliminate sex discrimination, sexual harassment and victimisation, this was noted but not agreed to by the Government. The Government took this position on the basis that current WHS laws already place a similar obligation on businesses. The Government has said, however, that it will amend the Sex Discrimination Act 1984 (Cth) to ensure greater alignment with WHS laws.
When are the changes coming into effect?
Prime Minister Scott Morrison has stated that the goal is to implement many of the recommendations partially or in full by the end of June 2021.
We will keep you informed about how the changes to the legislation develop.
Would you like to access the Respect@Work Report? See the link below:
Respect@Work: Sexual Harassment National Inquiry Report (2020) | Australian Human Rights Commission
Need further help?
If you need further help on any of the matters raised in this article please contact EI Legal.