The Government has announced it will introduce a number of reforms designed to bolster the national legal framework for combating sexual harassment at work. This comes in the wake of a wave of publicity surrounding high profile sexual harassment and assault allegations.
Background – Respect@Work Report
In 2018, the Government commissioned a national inquiry into sexual harassment in Australian workplaces, driven in large part by the #MeToo movement. The product of this inquiry – the Respect@Work Report (the "Report") – found that sexual harassment is a pervasive and widespread issue across Australian society and that the existing legal framework for addressing sexual harassment is complex and confusing for both workers and employers. The Report sets out 55 recommendations for how the legal framework could better prevent and address sexual harassment at work.
The Government recently published its response to the Report, which agreed to a number of the recommendations (in one form or another) and "noted" those which are not likely to be implemented (subject to the Government's further consideration).
What is going to change
Some of the most notable recommendations which have been agreed to include:
- making it clear in the Fair Work Act 2009 (Cth) (the "Act") that sexual harassment is a valid reason for dismissal, and amending the definition of "serious misconduct" in the Fair Work Regulations 2009 (Cth) to include "sexual harassment".
- introducing a "stop sexual harassment order" equivalent to a "stop bullying order", although the Government has indicated that it will simply clarify that a "stop bullying order" is available in the context of sexual harassment.
While the courts have long recognised sexual harassment as a valid reason for termination (including termination without notice), the first change above would make clear that employers could consider such an outcome within the ambit of the Act.
What is not likely to change
Some of the most significant changes recommended in the Report include creating a positive duty on employers to take reasonable measures to eliminate sex discrimination and sexual harassment in their workplaces, and giving the Fair Work Commission enforcement powers to that end.
In its response, the Government noted that under existing health and safety laws employers already have a duty to ensure that workers are not exposed to health and safety risks, which includes the risk of being sexually harassed. The Government suggested that introducing a positive duty as envisaged in the recommendation could risk creating "further complexity, uncertainty or duplication in the overarching legal framework". While the Government has indicated it will consider this recommendation further, we are doubtful any such positive duty will be introduced as part of the reforms given the Government's lukewarm response.
When are the changes taking effect?
It is not clear at this stage when any of the recommendations that have been endorsed will take effect, although the Government has indicated its aim to introduce the proposed reforms to Parliament by the end of June 2021.