We have closely followed the progress of the reforms recommended in the Respect@Work Report, published following a 2018 Government commissioned national inquiry into sexual harassment and discrimination in Australian workplaces.
We wrote about the background to the recommended reforms and outlined which of those recommendations had been endorsed by the Government, making their way into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the "Bill"), here.
The Bill has now passed Parliament, amending the Fair Work Act 2009 ("FW Act") and the Sex Discrimination Act 1984 ("SD Act") to introduce a number of noteworthy reforms.
Changes to the FW Act include:
- Orders to stop sexual harassment: the amending legislation extends the existing anti-bullying regime to enable workers to apply to the Fair Work Commission for an order to stop sexual harassment in the workplace. The Fair Work Commission may make such an order if it is satisfied that sexual harassment has occurred and there is a risk of the harassment occurring in future. Unlike anti-bullying orders, there is no requirement for the sexual harassment to be repeated behaviour.
- Serious misconduct: sexual harassment is now expressly included in the definition of 'serious misconduct' with the Fair Work Regulation. Of course, it will remain necessary for employers to properly investigate alleged sexual harassment before making a decision to terminate employment on that basis.
- Compassionate leave for miscarriage: the introduction of a statutory entitlement to two days' paid compassionate leave for employees who experience a miscarriage.
Changes to the SD Act include:
- Expanded coverage of protections: an expansion of the coverage of the SD Act to encompass interns, volunteers, self-employed workers, judges, and members of parliament and staff at all levels of government.
- Exemption removal: the removal of the exemption in the SD Act excluding state public servants from its protections.
- Longer period to make complaints: the timeframe to make a complaint to the Australian Human Rights Commission has now been increased from six months to 24 months after alleged sexual conduct. This will allow more historical complaints to be determined;
- Expanded prohibitions against harassment: the introduction of a prohibition against harassment on the ground of sex. Harassment on the basis of sex means any unwelcome conduct of a seriously demeaning nature towards a person harassed by reason of their sex in circumstances where a reasonable person would have anticipated that the individual would be offended, humiliated or intimidated; and
- Victimisation: the introduction of a prohibition against victimisation (such as threatening someone or disadvantaging someone for taking action such as lodging a complaint). Victimisation can amount to unlawful discrimination (in addition to a criminal offence) under the SD Act.
When are the changes taking effect and what this means for employers?
A number of the changes outlined above are now in effect, including the amendment to the FW Act making it clear that sexual harassment is a valid reason for termination. The introduction of "Stop Sexual Harassment" orders will likely take effect within the next few months as the Fair Work Commission has been granted time to ensure it can establish appropriate systems and processes for managing applications for such orders.
One of the most significant changes recommended by the Respect@Work Report was the introduction of 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. Significantly, this recommendation was not endorsed by the government and did not find its way into the Bill.
Although a positive obligation to eliminate discrimination and harassment was not introduced, it remains critical for all employers to ensure that their policies, training and systems are up-to-date and fit for purpose. This includes ensuring that employers have systems in place for the prompt and confidential handling of complaints. Employers should also give close consideration to an external cultural audit as a proactive means of aligning micro-cultures within a business to the overall values promoted by policy and management.