Written by Ruth Rosedale and Andrew McLeod.
On 24 June 2021, the Federal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill).
The Bill is intended to strengthen and simplify the legislative frameworks that protect workers from sex discrimination in the workplace.
The Bill follows Sex Discrimination Commissioner Kate Jenkins' Respect@Work Report, which was published in March 2020. If passed, the Bill would give effect to recommendations 16, 20, 21, 22, 29 of the Respect@Work Report. The Government agreed to enact these recommendations in April 2021 in its official response to the Respect@Work Report – the Road Map for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces.
This alert unpacks the key elements of the new Bill.
Key elements
The Bill proposes to amend both the Fair Work Act 2009 (FW Act) and the Sex Discrimination Act 1984 (SD Act). The key elements of the Bill are summarised below:
Commentary |
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Extension of SD Act protections to public servants |
The Bill would extend the reach of the SD Act to members of Parliament, their staff, and judges as well as removing existing exemptions for State public servants. |
'Stop orders' in relation to sexual harassment |
The Bill would amend the existing anti-bullying jurisdiction in the FW Act to clarify that the Fair Work Commission can make an order to stop sexual harassment in the workplace. As is the case within the existing anti-bullying jurisdiction, orders are intended to prevent the risk of future harm. Accordingly, orders will not be available in cases where the person who has harassed the worker is no longer employed in the workplace. However, the jurisdiction can be used in circumstances where the sexual harassment has only occurred on one occasion. Unlike bullying-stop orders, there is no requirement for a worker to establish a risk to health and safety on the basis that sexual harassment is a known and accepted work health and safety risk. |
Aligning the SD Act with the terms used in the model Work Health and Safety law |
The Bill adopts the concepts of 'worker' and 'PCBU' (persons conducting a business or undertaking) used in the model WHS law. This language is aimed at ensuring broader coverage and protection from harassment under the SD Act for persons not previously covered. For example interns, volunteers and self-employed workers. Given the model WHS laws currently impose a duty on employers and PCBUs to ensure workers are not exposed to health and safety risks (which includes the risk of sexual harassment), query the practical impact of this amendment. |
Expressly prohibiting sex-based harassment |
The Bill would insert a new provision in the SD Act to make it expressly clear that it is unlawful to harass a person on the basis of their sex. This amendment is clarificatory with respect to existing case law. That is, sex-based harassment can already be found unlawful under the SD Act. However, it is intended to address the finding in the Respect@Work Report that people can experience harassing conduct based on their sex but which is not necessarily sexual in nature. |
Sexual harassment as a valid reason for dismissal |
The Bill would insert a legislative note into the FW Act that sexual harassment in connection with a person's employment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or reasonable. This amendment merely clarifies the existing position at law. |
Reducing procedural barriers to complaining to the Australia Human Rights Commission |
The Bill would amend the discretionary grounds on which a complaint under the SD Act can be terminated by the President of the AHRC and extend the requisite timeframe. Specifically, the Bill would provide that a complaint may only be terminated if it is made more than 24 months (rather than 6 months) after the alleged unlawful conduct took place. |
Compassionate leave to include miscarriage as a permissible occasion |
The Bill would also vary the existing entitlement to compassionate leave in the FW Act to include miscarriage as a permissible occasion in relation to which leave can be taken. This amendment will enable an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or the employee's spouse or de facto partner, has a miscarriage. |
Where to from here?
On the whole, the Bill does not propose sweeping changes in respect of sex discrimination or sexual harassment in the workplace. While there are some welcome changes including the broader application of the SD Act to certain groups, many of the Bill's key elements merely seek to clarify the current protections the law already offers to workers.
It is unclear whether the Bill will be a catalyst for bringing about real and substantive changes to the manner in which sexual harassment is addressed in the workplace and to offer a broader and more accessible range of remedies for those who are impacted by such conduct.
What this Bill means for employers?
Despite the above, employers still need be aware of a few crucial changes. In particular, employers should;
- familiarise themselves with the Fair Work Commission's expanded anti-bullying jurisdiction under the Bill (that is, issuing stop orders in relation to sexual harassment); and
- review their employment and health and safety policies to ensure that they are consistent with the expanded ambit of the SD Act.
We will be providing further updates as the Bill progresses through Parliament.
