On 10 September 2021 the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (‘the Respect at Work Act’) came into effect after receiving royal assent.
The Respect at Work Act has introduced changes to 3 separate pieces of existing legislation (discussed further below), and, as stated in the Respect at Work Act’s explanatory memorandum, aims to “ensure that more workers, particularly vulnerable workers, are protected and empowered to address unlawful conduct.”
In addition, miscarriage leave has been introduced for the first time, through an expansion of the entitlement to compassionate leave.
All the changes are now in effect, except for provisions relating to “stop bullying orders” which commence in November 2021, as explained further below.
In 2018, in the midst of the #MeToo movement, the Government commissioned the Australian Human Rights Commission (‘AHRC’) to undertake a national inquiry into sexual harassment in Australian workplaces. The result of this inquiry was a 932-page report entitled ‘Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces’ (‘the Report’), which found that sexual harassment in Australian workplaces is, unfortunately, “prevalent and pervasive”. In response to this finding, the Report tabled 55 recommendations to assist Australian workplaces to better prevent and respond to sexual harassment. Amongst these recommendations were several which specifically addressed the existing legal and regulatory framework around sexual harassment in the workplace.
In answer to the Report, the Government published the response entitled “A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces” (‘the Response’) in which it commented on the Report’s recommendations and outlined which it would be supporting. Ultimately, 6 of the Report’s recommendations were incorporated into the Bill, along with additional measures (not included in the Report) to:
- extend the circumstances in which an employee can take compassionate leave; and
- expand the scope of current sex discrimination legislation to apply to judges and members of parliament (discussed further below).
A number of additional recommendations from the Report received in-principle or in-part support of the Government and will be progressively rolled out. We will discuss some of the employment law-related recommendations further below which received support but were not included in the Respect at Work Act (in other words, changes which the Government supported that did not need to be legislated).
The Respect at Work Act
The Respect at Work Act has amended the following 3 pieces of legislation:
- the Fair Work Act 2009 (Cth) (‘FW Act’)
- the Sex Discrimination Act 1984 (Cth) (‘SD Act’)
- the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’)
The changes aim to provide employees experiencing sexual harassment in the workplace with greater protections and to clarify how the existing legislation operates when it comes to sexual harassment. The Respect at Work Act includes the following changes:
The FW Act
‘Stop orders’ for sexual harassment – The Respect at Work Act has amended the FW Act to make clear that conduct which amounts to bullying can also be sexual harassment. As such, individuals experiencing sexual harassment can apply to the Fair Work Commission (‘FWC’) for a ‘stop order’, just as those who experience bullying can.
To effect these changes, a definition of ‘sexual harassment’ has been inserted into the FW Act, which mirrors the definition found in the SD Act, being that one person sexually harasses another person if:
- “they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
- they engage in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.”
Employees can apply to the FWC for ‘stop orders’ in relation to sexual harassment from 11 November 2021.
Sexual harassment valid reason for dismissal – The Respect at Work Act has inserted a new note into the FW Act which makes it clear that sexual harassment can amount to a ‘valid reason’ for dismissal when considering whether an employee’s dismissal was ‘harsh, unjust or unreasonable’.
Miscarriage leave – The Respect at Work Act has varied the existing entitlement to compassionate leave by enabling employees to take up to 2 days of compassionate leave (paid for permanent employees, unpaid for casual employees) if the employee, or the employee’s current spouse or de facto partner has a miscarriage. We note that miscarriage is defined as “the spontaneous loss of the embryo or foetus before 20 weeks’ gestation”.
The SD Act
Objects of the SD Act expanded – The Respect at Work Act has amended the SD Act’s ‘objects clause’ (i.e., the clause used to guide individuals and the Court on the Act’s underlying purpose) to make clear that it aims to: eliminate, so far as possible, not only discrimination involving sexual harassment but also “discrimination involving harassment on the grounds of sex” (discussed further below), and to achieve, so far as practicable, “equality of opportunity between men and women”.
Scope of the SD Act expanded – The Respect at Work Act has expanded the scope of the SD Act in the following ways:
It has inserted the concepts of ‘worker’ and ‘persons conducting a business or undertaking’ used in existing Work Health and Safety Law to ensure that all workers, paid and unpaid (such as interns, volunteers and self-employed workers), are protected from sexual harassment,
- It has amended the SD Act so that anyone who “causes, instructs, induces, aids or permits someone else to engage in sexual harassment, or sex-based harassment” can also be found to have engaged in unlawful conduct.
- It has clarified that the Act applies to members of parliament, their staff, and judges.
- It has removed the current exemption applying state public servants to ensure the protections contained in the SD Act are also available to these workers.
Express prohibition of sex-based harassment – The Respect at Work Act has inserted new provisions into the SD Act to make it clear that it is unlawful to harass a person because of their sex. These provisions are in addition to the existing provisions of the SD Act which make it unlawful to discriminate against a person because of their sex.
As such, the SD Act now includes a definition of ‘harassment on the ground of sex’, which states that a person harasses another on the grounds of sex if:
- An individual engages in unwelcome conduct of a seriously demeaning nature by reason of another person’s sex, or by reason of the characteristics which generally relate to or are imputed to persons of the same sex of the person harassed; and
- A reasonable person would have anticipated the person harassed would be offended, humiliated, or intimidated.
In other words, if the harassment is on the grounds of someone’s sex, the harassment does not need to be sexual in nature to be unlawful. Harassment that is sexual in nature would include lewd comments about someone’s appearance, unwanted sexual advances, etc. On the other hand, harassment that is on the grounds of sex may include sexist remarks, which, for example, imply that certain tasks are strictly ‘men’s work’ or ‘women’s work’.
Victimisation – The Respect at Work Act has clarified the current case law to ensure that an individual who is ‘victimised’ because, for example, they make a complaint relating to sexual harassment, can make a civil claim under the SD Act. These provisions are in addition to the current provisions which allow an individual to make a criminal complaint under the SD Act. Amendments have also been made to the AHRC Act to facilitate these changes.
The AHRC Act
Timeframe for sexual harassment complaint extended – Although sexual harassment complaints can technically be brought at any time, previously, claims that were brought outside of 6 months of the incident would not be considered by the AHRC, unless it exercised its discretion to extend the time-limit. This time-limit has been extended to 24 months. In effect this means that an employee must now bring a claim within 24 months (rather than 6 months) unless there are grounds to persuade the AHRC to consider the claim outside of this timeframe.
In addition to the above changes, the definition of ‘serious misconduct’ in the Fair Work Regulations 2009 has been amended to include sexual harassment. These changes has been made to clarify that such behaviour can justify termination of employment without notice.
Further, the Government will also be asking the Fair Work Commission to update its materials which relate to unfair dismissal and ‘stop orders’. It will also ask the Fair Work Ombudsman to update its guidance for workers on their rights in relation to sexual harassment.
Lessons for Employers
First and foremost, we recommend employers have policies in place which allow them to effectively respond to sexual harassment. A workplace policy dealing with sexual harassment is one of the most important policies for an employer to have in place. Primarily it is a useful method to communicate to employees matters such as:
- the sort of conduct that constitutes sexual harassment
- that this conduct will not be tolerated in the workplace
- that this conduct is against the law, for which both employee and the employer can be liable
- how employees can report any such conduct that occurs
- the support that will be offered to victims of sexual harassment
It is also necessary to have such a policy in place for an employer to seek to avoid liability for any sexual harassment that occurs in its workplace. Employers will be liable for the actions of an employee who engages in sexual harassment, unless they can show that they took all reasonable steps they could to prevent this from occurring.
One important step in doing so is having a clear sexual harassment policy which is communicated to all employees, and ideally that they are given regular training on. Of course, combatting sexual harassment goes much further than workplace policies and needs to be embedded in workplace culture and led from the management of the organisation down, but a robust workplace policy is an important first step.
Employers may need to update existing policies to take account of the changes relating to sexual harassment stated above.
In addition, we also recommend employers:
- review your leave policy and update as necessary to ensure it provides for the new miscarriage leave entitlements; and
- review your employment contracts and disciplinary / termination of employment policies and update as necessary to make clear that sexual harassment can be grounds for summary dismissal.
Need further help?
If you need further help on any of the matters raised in this article please contact EI Legal.