The Federal Government has responded to the Respect@Work Report (the Report) which was presented to the Government by the Sex Discrimination Commissioner, Kate Jenkins, in March last year as part of the Australian Human Rights Commission's (AHRC) landmark National Inquiry into Sexual Harassment in Australian Workplaces. Broadly, the AHRC made recommendations based on submissions it had received that revealed that the current system for addressing workplace sexual harassment in Australia is complex and confusing for both victims and employers to understand and navigate.

As part of its 'Roadmap for Respect' initiative the Federal Government has agreed (in full, in-principle, or in-part) or noted all 55 recommendations in the Report and announced a number of legislative and regulatory reforms. Those reforms have the objective, in part, of simplifying and strengthening the legal framework under both the Sex Discrimination Act 1984 (SDA) and federal employment legislation (the Fair Work Act 2009 (FW Act) and the Fair Work Regulations 2009 (FW Regulations).

The key takeaways are set out below.

Sex Discrimination Act 1984

  • Currently, the President of the AHRC has the discretion to terminate a complaint lodged more than six months after alleged unlawful discrimination took place. It has been accepted by the Government that the timeframe for exercising the discretion to terminate be extended to 24 months.
  • Section 105 of the SDA (which deals with the liability of third persons) will be amended to ensure it applies to sexual harassment.
  • Section 94 of the SDA (which relates to victimisation against another person) will be amended to make it explicit that any conduct that is an offence under that section can form the basis of an action for unlawful discrimination in a civil claim commenced in the Federal Court or Federal Circuit Court.
  • Although not recommended in the Report, the Government will clarify that the scope of the SDA extends to judges and members of parliament, and remove the current exemption for state public servants.

A recommendation for further amendments to the SDA to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation was noted but not agreed to by the Government. That was on the basis the model WHS Laws already place a similar obligation on businesses. The Government has said, however, that it will amend the SDA to ensure greater alignment with model WHS laws.

A recommendation to amend the Australian Human Rights Commission Act 1986 (AHRC Act) to provide the AHRC with a broad function to inquire into systemic unlawful discrimination was agreed in part, with the Government noting that the AHRC already has a series of existing functions to conduct investigations.

The Government agreed to review a recommendation that a cost protection provision, consistent with the FW Act, be introduced into the AHRC Act.

Fair Work Legislation

The Report recommended that the FW Act and FW Regulations be reviewed to clarify that sexual harassment, using the definition in the Sex Discrimination Act, be expressly prohibited. The Government has agreed to this proposal in principle, noting it will review that legislation once certain amendments to the SDA have been implemented and their impact assessed.

Recommendations expressly agreed to by the Government include:

  • Section 387 of the FW Act will be amended to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable.
  • The Government will amend the definition of 'serious misconduct' in the FW Regulations to include sexual harassment. This amendment clarifies that where an employer dismisses an employee because of sexual harassment, there is no entitlement to notice under the FW Act.
  • Clarifying that a 'stop bullying order' (and not a 'stop sexual harassment order' as had been recommended in the Report) will be made available in the context of sexual harassment.

Non-Disclosure Agreements

A topical issue that arose during the AHRC's inquiry was the use of non-disclosure agreements (NDAs) in sexual harassment matters. Concerns were raised that NDAs could be used to protect the reputation of the business or the harasser and contribute to a culture of silence.

The Report recommended that, in conjunction with the Workplace Sexual Harassment Council (which is chaired by Kate Jenkins), the AHRC develop a practice note or guideline that identifies best practice principles to inform the development of regulation on the use of NDAs in workplace sexual harassment matters. That recommendation was agreed to by the Government. The Government has also agreed to work with state and territory governments to amend their human rights and anti-discrimination legislation with the objective of achieving consistency, where possible, with the SDA.

We will keep a close eye on the progress of the legislative reforms agreed to by the Government, and will provide updates as and when they occur.

For further information please contact:

Katrina Seck, Senior Associate
Phone: 02 9233 5544

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