Respect@Work: Government introduces Bill to tackle sexual harassment in workplaces

As foreshadowed in our client alert Proposed reforms to tackle sexual harassment, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 has been introduced into Parliament.

The Bill implements six of the 55 recommendations for legislative reform to address sexual harassment in the workplace made by the Sex Discrimination Commissioner, Kate Jenkins, in the Respect@Work Report published in 2020.

Changes to the Fair Work Act

The Bill makes the following amendments to the Fair Work Act:

• unfair dismissal: amending the unfair dismissal provisions to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal, for the purposes of the Fair Work Commission determining whether a dismissal was harsh, unjust or unreasonable; and
• stop sexual harassment orders: enabling a person who has been sexually harassed at work to apply to the Fair Work Commission for a ‘stop sexual harassment order’, akin to the current ‘stop bullying order’. The Commission has jurisdiction to make a ‘stop sexual harassment order’ where there has been a single instance of sexual harassment. An application for an order to stop sexual harassment can be made whether the sexual harassment occurred before or after the Bill comes into effect. As with stop bullying orders, there must be a risk of the harassment occurring again at the time the orders are made but no risk to health and safety needs to be established and no financial compensation can be awarded; and

As a separate matter unrelated to the Respect@Work Report, the Bill also expands the scope of the entitlement to compassionate leave to allow paid compassionate leave to be accessed (unpaid for casual employees) if an employee, or their spouse or de facto partner, has a miscarriage before a gestation period of 20 weeks.

Changes to the Sex Discrimination Act

The Bill proposes the following amendments to the Sex Discrimination Act:

• objects: introduces a new object to state that a purpose of the Act is ‘to achieve, so far as is practicable, equality of opportunity between men and women’. This amendment is in response to the Respect@Work’s finding that gender inequality is a key driver of workplace sexual harassment;
• expanded coverage: expands the coverage of the Act to workers and persons conducting a business or undertaking as used in the model Work Health and Safety laws. This will result in the extension of the Act to persons not previously covered by the Act such as interns, apprentices, volunteers and self-employed workers. Coverage is also extended to harassment in connection with the person being an employer or employee so the person being harassed does not need to be performing work when the harassment occurs;
• sex based harassment: prohibits ‘harassment on the ground of sex’ to deal with sexual harassment which is not necessarily of a sexual nature. Under this new section, the grounds for which someone can be considered to have been harassed include on the basis of their sex, a characteristic that relates to sex, or a characteristic that is generally imputed to sex. Sex based harassment will be unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances in which a reasonable person would have anticipated that the person would be offended, humiliated or intimidated. Circumstances relevant to determining whether harassment on the ground of sex has occurred include, among other things, any power imbalance in the relationship between the person harassed and the person who engaged in the conduct, the seriousness of the conduct and whether it is repeated;
• victimisation: clarifies that victimisation in relation to sexual harassment is unlawful discrimination and can form the basis of a civil proceeding. The existing criminal offence for victimisation in the Act will be removed;
• accessorial liability: amends the scope of the vicarious liability provisions to apply to any person who ‘causes, instructs, induces, aids or permits sexual harassment and sex-based harassment; and
• public servants: although it was not a recommendation in the Respect@Work Report, the Bill will clarify the Act extends to Members of Parliament and parliamentary staff, judges and judicial staff and state public servants.

Changes to the Australian Human Rights Commission Act

Finally, the Bill proposes amendments to the Australian Human Rights Commission Act in relation to the Commission’s role in hearing sexual harassment, sex-based discrimination and victimisation complaints. These amendments:

• extended time for complaints: provide that complaints under the Sex Discrimination Act cannot be terminated on the grounds of time lapse until 24 months (rather than the current 6 months) have passed since the unlawful discrimination took place, recognising that complaints relating to sexual harassment and sex-based discrimination are often sensitive in nature and it may be difficult for a person to lodge a complaint within 6 months of the incident occurring; and
• victimisation: give the Commission power to hear complaints under the new civil victimisation provisions in the Sex Discrimination Act (see above), by amending the definition of unlawful discrimination in the Australian Human Rights Commission Act. If such a complaint is terminated by the Commission, the complainant will be able to initiate civil proceedings for unlawful discrimination in the Federal Court or Federal Circuit Court, an avenue for complainants that has been legally uncertain up to this point.

What happens next?

The Bill has been referred to the Senate Employment and Education Committee for review. The Committee is accepting submissions until 9 July 2021 and will publish its advisory report on the Bill by 6 August 2021. The Bill will then be considered by Parliament. The ACTU has indicated that its position is that the Bill falls short of the recommendations needed to effectively reform sexual harassment laws.

In anticipation of the Bill being passed, employers should prepare to review their workplace policies and complaint handling processes to ensure they will comply with the new laws, as well as prepare to provide training on the new laws to all workers and officers to ensure all employees and officers understand their obligations. JWS is currently offering comprehensive training sessions about the key considerations for employers in light of Respect@Work Report and the related legislative changes and to help ensure compliance with work health and safety and discrimination legislation.