Sexual Harassment

In 2020, Sex Discrimination Commissioner Kate Jenkins published the Respect@Work Report following the Australian Human Rights Commission inquiry into sexual harassment in Australian workplaces in 2018.

In September 2021, the Australian Government implemented a suite of legislative reforms to sexual harassment laws under the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect@Work Act). The Respect@Work Act as passed:

• amends the Sex Discrimination Act (1984) (Cth) (SD Act) to make it expressly clear that it is unlawful to harass a person on the ground of their sex;
• expands the coverage of the SD Act to persons not previously covered such as, interns and volunteers;
• ensures that a person who causes, instructs, induces, aids or permits someone else to engage in sexual harassment may also be found liable;
• enables the Fair Work Commission to make anti-sexual-harassment orders, much like anti-bullying Stop Orders. 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 Act came 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;
• introduces sexual harassment as a valid reason for dismissal; and
• amends the Australian Human Rights Commission Act 1986 (Cth) to extend time for complains under the SD Act until 24 months (rather than the previous 6 months) have passed since the unlawful discrimination took place, or in in any other case—more than 6 months after the alleged acts, omissions or practices took place.

Notably, the Government did not adopt the Commissioner’s recommendation to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation.

As a separate workplace matter, the Respect@Work Act varied the existing entitlement to compassionate leave in the Fair Work Act 2009 (Cth) to include miscarriage as a permissible basis for taking compassionate leave. This will enable an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or employee’s current spouse or de facto partner, has a miscarriage before a gestation period of 20 weeks.