On 2 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 passed both Houses of Parliament, and will shortly become law. Notably, the Fair Work Act will, as a result of the Bill, be amended to enable employees to apply to the Fair Work Commission for a ‘Stop Sexual Harassment Order’. The Bill will also, among other things, significantly expand the coverage of the Sex Discrimination Act.

Background

#MeToo and #TimesUp have ignited a continuing global discussion about sexual harassment and gender inequality. The Respect@Work Report, delivered by Sex Discrimination Commissioner Kate Jenkins in 2020, proposed a package of 55 recommendations, constituting a new approach for government, employers and the community to better prevent and respond to sexual harassment in the workplace. The Bill implements some of the legislative recommendations, with the aim of reducing the prevalence of sexual harassment and gender-based discrimination in Australian workplaces.

Broadly speaking, the Bill aims to better protect and empower workers, particularly vulnerable workers, in respect of workplace sexual harassment by making changes to 3 existing Commonwealth laws:

• the Fair Work Act 2009 (Cth)
• the Sex Discrimination Act 1984 (Cth)
• the Australian Human Rights Commission Act 1986 (Cth).

Notable changes implemented by the Bill

Once the Bill receives royal assent, among other changes, the following notable changes will take effect:

Under the Fair Work Act:

• It will be explicitly stated that sexual harassment in connection with a person’s employment can be a valid reason for dismissal
• A worker who is sexually harassed at work will be able to apply for a Fair Work Commission ‘Stop Sexual Harassment Order’, similar to the ‘Stop Bullying Order’ regime
• If a worker or their partner have a miscarriage, they will now each be entitled to 2 days’ paid compassionate leave (unpaid for casuals).

Under the Sex Discrimination Act:

• Discrimination involving harassment on the ground of sex will now be expressly prohibited. Whilst sex-based harassment is already prohibited under the Sex Discrimination Act as a form of sex-based discrimination, the Respect@Work Report found that this is not well understood
• Sexual harassment protections will now be extended to all paid and unpaid workers, including volunteers, interns and the self-employed
• The Sex Discrimination Act now applies to allow complaints by (and against) members of Parliament, Commonwealth, state and territory judges, and state and territory public servants.

Under the Australian Human Rights Commission Act:

• In recognition of the pressures faced by complainants in speaking up, the time period available for making a complaint under the Sex Discrimination Act to the Human Rights Commission will be extended from six months to two years.

What is not included?

One key recommendation in the Respect@Work report was to impose a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation. This is already legislatively enshrined in Victoria, but not at a Federal level. Such a duty is also similar to the duties imposed on employers under work health and safety legislation. Given that sexual harassment is a work health and safety issue, we will wait to see how regulators address this with enforcement action under relevant WHS/OHS legislation.

Other recommendations not implemented by the Commonwealth included a recommendation empowering the Human Rights Commission to inquire into systemic unlawful discrimination, including systemic sexual harassment, among others.

Key takeaways

The Bill sends a clear signal to employers that workplace sexual harassment and discrimination is unlawful and must be taken seriously. The express inclusion of workplace sexual harassment that can be a valid reason for dismissal further reinforces the idea that taking strong action is appropriate and necessary to make workplaces safer, fairer and more equal for all Australians, particularly women.

We recommend that employers ensure they have updated their sexual harassment policies to account for the changes recommended in a wide range of reports released over the past two years, including providing details of all the options available for complainants. Employers should conduct risk assessments, record sexual harassment risks in your organizational risk register, have a prevention plan and record metrics. You should also update your training and policies to reflect the changes from the Bill, particularly so that staff know if they are able to access the Fair Work Commission’s Stop Sexual Harassment Order jurisdiction.