On 24 June 2021, the Morrison Government released the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill). For more background on the lead up to the Bill, please see our previous article.
The Bill was introduced in response to the Australian Human Rights Commission (AHRC) 'Respect@Work: A National Inquiry into Sexual Harassment in the Australian Workplace' (Report) and has been referred to the Education and Employment Committee (Committee). The Committee is due to hand down its recommendation on 6 August 2021.
The Bill proposes to amend federal laws to clarify and simplify the current sex discrimination and sexual harassment laws in Australia in an attempt to combat the prevalence of sexual harassment in Australian workplaces. In addition, the Bill is intended to support meaningful cultural change in Australian workplaces in light of concerns about employer responses to sexual harassment and other forms of sex discrimination.
This article outlines the proposed changes and the steps employers should consider in responding to these proposed changes.
Major changes in the Bill
The Bill proposes amendments to the Fair Work Act 2009 (Cth) (FW Act), Sex Discrimination Act 1984 (Cth) (SD Act) and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
The major changes proposed in the Bill include:
- extending compassionate leave entitlements under the FW Act to include the occurrence of miscarriages. Full-time and part-time employees can take up to two days paid leave (unpaid for casuals) if the employee, employee's spouse or de facto partner has a miscarriage
- extending "stop bullying orders" under the FW Act to include sexual harassment. Workers can apply to the Fair Work Commission (FWC) for an "order to stop sexual harassment". Workers will be able to apply for this order for conduct that occurred "before, at or after" the legislation commences operating. The FWC has made a submission to the Committee, requesting a delay to the commencement of "orders to stop sexual harassment". The FWC says it needs this additional time to prepare for and manage the expected "significant increase" of applications. If this request is accepted, orders will be available for workers two months after the Bill passes through Parliament
- expanding the coverage of the SD Act to include "persons conducting a business or undertakings" (PCBU) and "workers". This extends the SD Act to people such as volunteers, contractors and the self-employed. The addition of "workers" and "PCBU" aligns the coverage of the SD Act with the model Work Health and Safety legislation
- including a 'harassment on the ground of sex' section in the SD Act, explicitly prohibiting sex-based harassment. Sex-based harassment will be unlawful in all areas of public life
- extending the period in which to make a complaint to the AHRC from six months to 24 months, where the complaint is made under the SD Act.
Notable changes in the Bill
In addition to the above, the Bill also seeks to clarify and simplify current law through:
- clarifying that sexual harassment is a "valid reason" for dismissal under the unfair dismissal regime in the FW Act
- including a "victimisation" section in the SD Act, clarifying that victimisation is an unlawful civil action
- prohibiting, under the SD Act, someone from instructing, inducing, aiding or permitting someone else to engage in sexual harassment or sex-based harassment.
What is not included in the Bill?
Despite proposing a number of key changes, the Bill did not include the following recommendations from the Report:
- the Report proposed the SD Act includes a positive duty for employers to create a safe workplace free from sexual harassment. The Government indicated that they would not include this reform, as a positive duty to create a safe workplace already exists under the model Work Health and Safety laws
- the Report proposed that the AHRC be given additional powers
- assess compliance and enforcement of an employer's positive duty to create a safe workplace
- enquire into systemic unlawful discrimination.
The Bill did not propose any additional powers for the AHRC. Thus, on one view, the enforcement of employer obligations remains 'reactive' and whether the reforms will be enough to bring about meaningful cultural change remains to be seen.
Fair Work Amendment (Respect at Work) Regulations 2021
On 10 July 2021, the Fair Work Amendment (Respect at Work) Regulations 2021 (Regulations) came into operation. The Regulations adopt the recommendation in the Report that sexual harassment should be included in the definition of "serious misconduct" in the Fair Work Regulations 2009 (Cth).
How can you prepare?
If the Senate passes the Bill, the changes are likely to come into effect this year. Employers would therefore be well-served by taking steps to prepare for the new legislation.
As an initial step, employers should audit and identify gaps in their policies and procedures in preparation for compliance with the new requirements. The audit should include a review of 'appropriate' workplace behaviour policies and related workplace policies, including grievance handling policies, to assess whether they meet current statutory obligations and AHRC guidelines. Leave policies should also be reviewed to determine whether a miscarriage is included as a reason for compassionate leave and the potential impact to the business once this proposed change takes effect.
Secondly, a workplace culture founded on mutual respect and acceptable workplace behaviour is key to ensuring a safe workplace. Employers should now critically assess their current workplace culture to determine whether changes are required. This may include developing strategies to address and reduce the prevalence of workplace sexual harassment from the top down. The following are key questions for employers to consider during this process:
- What is the prevalence of sexual harassment and sex discrimination in your workplace? Are there any recent trends or patterns of concern throughout the organisation?
- What forms of governance procedures and processes are currently in place which demonstrate the employer has taken all reasonable steps to prevent discrimination and/or harassment in the workplace? In our view, these measures are similar to those required to be implemented by directors and officers with personal due diligence obligations under work health and safety legislation
- Is your leadership team equipped to identify and respond to inappropriate workplace behaviour? How have your leaders managed recent complaints? Are there any learnings from past experiences which offer an opportunity for improvement going forward?
- Do your employees understand what behaviour is inappropriate?
- What sexual harassment and sex discrimination training do you have in place for board members, executives, managers and employees? Should this be refreshed or reviewed?
- Do your employees feel comfortable reporting sexual harassment? If not, why?
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.