Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 passed, and commences soon

On 2 September 2021, the Government passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect@Work Act), which adopts six of the 55 recommendations from the Respect@Work Report authored by Sex Discrimination Commissioner Kate Jenkins.

The Respect@Work Act amends the Sex Discrimination Act 1984 (Cth), the Australian Human Rights Commission Act 1986 (AHRC Act), and the Fair Work Act 2009 (Cth) (FW Act). It reflects an increased societal and legislative recognition of the way in which sexual harassment is a workplace health and safety issue, in the same manner that bullying has previously been recognised. Employers should interpret the Respect@Work Act as an indicator that tolerance for sexual harassment in the workplace is at a historical low and that more tools are available for employees to seek to put a stop to such conduct.

Almost all of the changes will start on the day after the Respect@Work Act receives royal assent, which is expected shortly. While the changes don't prompt immediate action by employers, they emphasise the public and Government opinion that sexual harassment in the workplace cannot be tolerated.

Equality of opportunity

The Respect@Work Act inserts a new object into the Sex Discrimination Act: "to achieve, so far as practicable, equality of opportunity between men and women". While not including the AHRC’s recommendation for the less qualified aim of achieving "substantive equality", this new object is designed to assist employees and employers, along with the courts and the community, on the underlying purpose of the Sex Discrimination Act.

Extending the scope of the Sex Discrimination Act

The Sex Discrimination Act now:

• includes, amongst others, all members of State and Federal Parliament, State and Territory public servants, and judges along with their staff and consultants;
• applies to any "worker" and "person conducting a business or undertaking", concepts which are taken from the model Work Health and Safety Act 2011. This has the effect of reducing complexity for businesses and their workers and it means that interns, apprentices, volunteers, and self-employed persons are now covered by the Sex Discrimination Act;
• covers harassment that occurs in connection with the person being an employer or employee. As such, a person who is harassed does not need to be performing work when the harassment occurs to be covered; and
• covers any person who "causes, instructs, induces, aids or permits sexual harassment and sex-based harassment". This has the effect of introducing accessorial liability into the Sex Discrimination Act.

Sex-based harassment is now an express form of unlawful conduct

While it is likely that sex-based harassment was already captured by the prohibitions on sexual harassment or unlawful discrimination, the Explanatory Memorandum provides that examples of sex-based harassment may include, based on the circumstances:

• asking intrusive personal questions based on a person’s sex;
• making inappropriate comments and jokes to a person based on their sex;
• displaying images or materials that are sexist, misogynistic or misandrist;
• making sexist, misogynistic or misandrist remarks about a specific person; and
• requesting a person to engage in degrading conduct based on their sex.

Victimising conduct can lead to civil and criminal proceedings

Civil remedy provisions have been introduced into the Sex Discrimination Act which means that a person who is threatened or subjected to detriment can, under the Act, make a civil claim. Criminal proceedings can still be initiated by the Australian Federal Police in response to any especially serious victimisation.

Extended time for complaints

Complaints under the Sex Discrimination Act cannot be terminated on the ground of time lapse until 24 months have passed since the unlawful discrimination took place. This is longer than the current time lapse limit of 6 months. This gives a potential complainant more opportunity to both consider and make their claim.

Victimisation

The AHRC now has the power to hear complaints under the new victimisation civil provisions in the Sex Discrimination Act. If the AHRC terminates such a complaint, the complainant will now still be able to initiate civil proceedings in the Federal Court or Federal Circuit Court on the grounds of unlawful discrimination.

Sexual harassment can be a valid reason for dismissal

The unfair dismissal provisions of the FW Act have been amended to clarify that sexual harassment can be a valid reason for dismissal for the purposes of the Fair Work Commission (FWC) when determining whether a dismissal was harsh, unjust or unreasonable.

Stop sexual harassment orders

A person who has been sexually harassed at work can apply to the FWC for a "stop sexual harassment order" (which is akin to a "stop bullying order"). These orders are intended to prevent the risk of future harm. To make such an order, the FWC must be satisfied that the harassment has occurred and it will not make an order where there is no risk of future workplace harassment. The "stop sexual harassment order" regime however will start two months after that date.

Miscarriage leave

An employee can now take up to two days of paid (unpaid for casuals) compassionate leave in the event that the employee, or their spouse or de factor partner, has a miscarriage. This change reflects an increased focus on recognising the trauma for employees that may arise from stillbirths, infant deaths and premature births.

Related Insights

• Clayton Utz and AICD Report – Sexual Harassment in the Workplace