The Federal Attorney General has introduced the Sex
Discrimination Act Amendment Bill 2010 into parliament
proposing a number of changes to the regime which has existed for
This marks the end of a prolonged investigation into the
effectiveness of the Sex Discrimination Act 1984, which
was undertaken by the Senate Legal and Constitutional Affairs
Committee. This followed wide complaints that the
protections under the Act are not adequate. Examples given of
such inadequacy included the fact that under the Act as it
currently exists, the protection against discrimination on the
ground of family responsibility is only triggered once an employee
Under the Bill, the Federal Government plans to enhance
protections under the legislation to:
Ensure protections from sex discrimination apply equally to
women and men
Extend the existing protections from discrimination on the
ground of family responsibilities to both men and women in all
areas of work
Establish breastfeeding as a separate ground of
Provide greater protection from sexual harassment for students
The new Bill is likely to broaden the protection for both men
and women from discrimination currently afforded to parents. The
extensions are likely to extend to all areas of work and will also
include prohibitions against indirect discrimination.
The amendments are also likely to bring the provisions of the
Act in line with the antidiscrimination provisions which are
included in the Fair Work Act 2009, which up until now,
would appear to have been more extensive.
Breastfeeding as a separate ground
The amendments establish breastfeeding as a possible ground of
discrimination, whereas previously there was no actual protection
against discrimination for breastfeeding women. The breastfeeding
amendments are intended to ensure special measures are taken to
accommodate breastfeeding in the workplace and other areas of
Sexual harassment amendments
It is proposed that the test for sexual harassment be widened in
three ways by:
Providing that sexual harassment can be found to have occurred
when it can be said that a reasonable person could have anticipated
the possibility that the person harassed would be offended,
humiliated or intimidated
Providing a list of possible circumstances to be taken into
account by a court in assessing that possibility
Extending the coverage of the laws to cover not only work
colleagues but also customers and clients with whom a person could
come into contact.
The Government intends that this will make it easier for
employers to develop effective policies for the prevention of
Implications for employers
If the legislation is passed by the new parliament as drafted,
the main implications for employers arising out of the new Act are
related to the sexual harassment amendments. Because of the
increased protection that employees will have from sexual
harassment by customers and clients, employers (and especially
Human Resource Managers) will need to assess whether sexual
harassment policies are adequate.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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