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 26 years.
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 is dismissed.
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 discrimination
- Provide greater protection from sexual harassment for students and workers.
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 public life.
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 sexual harassment.
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.