R-E-S-P-E-C-T find out what it means at work

Posted on September 16, 2021

On 2 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill) passed both houses of parliament and will come into effect shortly after receiving royal assent.

The Bill is designed to better protect Australians from sexual harassment at work and is in response to the recommendations made in Sex Discrimination Commissioner Kate Jenkins’ Respect@Work Report in 2020 (Report).

Three Commonwealth Acts will be amended as a result of the Bill including the Australian Human Rights Commission Act 1986, Fair Work Act 2009 (Cth) and Sex Discrimination Act 1984 (Cth).

Here are the most significant amendments implemented by the Bill that you need to know about.

Fair Work Act

  • Sexual harassment in connection with a person’s employment will now explicitly be stated as a valid reason for dismissal. This will be by virtue of an amendment made to the Fair Work Regulations which states that sexual harassment engaged by an employee in the course of employment is conduct that is serious misconduct.
  • Sexual harassment is defined as unwelcome and demeaning conduct that could be reasonably be anticipated to offend, humiliate or intimidate.
  • The Fair Work Commission can make orders to stop sexual harassment for a worker who is sexually harassed at work, similar to the stop bullying orders. there is a two-month period from the date the Bill is in force to adjust before an application can be made.
  • If a worker or their spouse or de facto partner have a miscarriage, they are entitled to take 2 days of paid compassionate leave or unpaid for casuals. This is aimed at reducing the discrimination against pregnancy and enhance women’s economic security during this time.

Australian Human Rights Commission Act

  • The time for making a complaint under the Sex Discrimination Act to the Human Rights Act is extended from six months to two years in recognition of the fears faced by complainants in coming forward.

Sex Discrimination Act

  • The Sex Discrimination Act will be extended to allow complaints by and against members of parliament, their staff, the judiciary and all levels of governments.
  • There is a new object clause to make it clear that the Sex Discrimination Act aims to achieve ‘so far as practicable’ equality of opportunity between men and women. It also expressly states that harassing someone on the basis of sex is prohibited.
  • Definitions of ‘worker’ and ‘persons conducting a business or undertaking’ will be included to extend the protection from sexual harassment to all paid and unpaid workers which includes volunteers, interns and the self-employed.
  • It was clarified that in addition to criminal proceedings, vicitimisation can give rise to civil proceedings in the Federal Court and Federal Circuit Court.

Is there a positive duty on employers to stop sexual harrassment?

The Government has voted against the recommendations made by Labor and the Greens that the Sex Discrimination Act be amended to introduce a positive duty of employers to take reasonable measure to eliminate sex discrimination, sexual harassment and victimisation, where possible. This is similar to the duty imposed on employers under work health and safety legislation.

Whilst the government has taken on a number of the recommendations made in the Report, legal bodies have warned that the Bill does not go far enough.

Overall, the Bill is a clear warning to employers that workplace sexual harassment and discrimination is unlawful and that severe action including dismissal can be taken.

Employers should ensure that any workplace sexual harassment policies and procedures are updated in line with these new amendments. Please contact our workplace relations team if you require assistance.

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