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Protecting workers from workplace sexual harassment: proposed legislation changes

Written by Nicolina Holmes

 

Parliament has passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 as part of the roll out of A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces.*

 

 

This article explores the proposed amendments to be implemented into legislation and the positive change they will have for workers, as well as how your organisation can prepare for their commencement.

 

 

 

The proposed amendments to Australia’s anti-discrimination laws

 

The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 includes six of the 55 recommendations presented in the Australian Human Rights Commission’s Respect@Work report. The scope of the Respect@Work report was explored in our earlier article Protecting Workers from Workplace Sexual Harassment.

 

 

This Bill also includes a couple of amendments which were not recommended in the report but are part of the Government’s agenda for sustaining equality in the workplace, such as compassionate leave for miscarriage.

 

 

The changes proposed by the Bill to Australia’s anti-discrimination laws are outlined below.

 

 

 

 

Sex Discrimination Act 1986 (SD Act)

 

  • Addition of a new object of the SD Act: “To achieve, so far as practicable, equality of opportunity between men and women.”

 

  • Harassment on the grounds of sex: It is unlawful to discriminate a person based on characteristics that relate to or are attributed to the sex of the person, such as a woman’s pregnancy.

 

  • ‘Harassment on the grounds of sex’ defined: Unwelcome conduct of a seriously demeaning nature, by reason of a person’s sex or a characteristic attributed to a person’s sex, in circumstances in which a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.

 

  • New terms “worker” and “PCBU” (persons conducting a business or undertaking): As used in the model Work Health and Safety law, meaning protections provided by the SD Act will extend to all workers such as interns, volunteers and self-employed workers.

 

  • Extension of protections: To also include Members of Parliament, their staff, judges and judicial employees.

 

  • Accessorial liability under Section 105 of the SD Act: Anyone who causes, instructs, aids or permits another person to engage in sexual harassment, or sex-based harassment, can also be found liable.

 

  • Unlawful sexual harassment through connection: If there is a connection of employee or employer with the harasser and the person being harassed, then the harassment is still deemed unlawful even if the harassment occurred when the person wasn’t conducting work.

 

  • Addition of ‘victimisation’ to Part II of the SD Act: Making victimisation in relation to sexual harassment as a form of unlawful discrimination as defined by the Australian Human Rights Commission Act.

 

 

Australian Human Rights Commission Act 1984 (AHRC Act)

 

  • Civil proceedings for unlawful discrimination: With victimisation in relation to sexual harassment being an act of unlawful discrimination, victimising conduct can form the basis of a civil action as well as a criminal complaint under the SD Act.

 

  • Extension of discretionary termination period: Extending the discretionary termination of a complaint that relates to the SD Act to “more than 24 months after the alleged acts, omissions or practices took place”.

 

 

Fair Work Act 2009 (FW Act)

 

  • Compassionate leave for miscarriage: Compassionate leave, paid for up to 2 days, made available for an employee or their spouse or de facto partner suffering a miscarriage.

 

  • ‘Stop order’ in relation to sexual harassment: The Fair Work Commission can make orders to stop sexual harassment. The stop order can be made if the worker was sexually harassed at work before, at or after the commencement of this provision.

 

  • Sexual harassment, a valid reason for dismissal: “Sexual harassment of a person in connection with the person’s employment” is a valid reason for dismissal under the FW Act.

 

 

 

 

Fair Work Amendment (Respect at Work) Regulations 2021

 

An amendment to the Fair Work Regulations 2009, which came into force on July 10 2021, included sexual harassment under the definition of ‘serious misconduct’. This means that employers can consider terminating employment in the event of sexual harassment.

 

 

 

 

Paving the way for security and inclusivity

 

The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 aims to simplify and strengthen Australia’s anti-discrimination laws that protect workers from sexual harassment and sex discrimination in the workplace, by:

 

 

  • Allowing all workers, particularly vulnerable workers, to address unlawful conduct with the adoption of terms “worker” and “PCBU” from WHS laws.

 

  • Encouraging equal treatment of women and enhancing their safety from violence and harassment based on their sex.

 

  • Acknowledging the delay for those who have experienced sexual harassment in raising a complaint and extending the time frame for dismissal by the Commission.

 

  • Providing a low-cost and informal process for those who have suffered sexual harassment to deal with complaints by making ‘sexual harassment stop orders’ available.

 

 

 

 

A good time to review your workplace culture

 

The introduction of these legislation changes, and the possibility of more changes in the future, presents an ideal opportunity to review and evaluate your workplace and its culture, policies, and protection of employees.

 

 

  • Identify any gaps in policies and procedures: In particular, grievance-handling policies, leave policies (to include compassionate leave for miscarriages), complaints procedures and training programs.

 

  • Review your training, information and instructions: Ensure adequate training, information and instructions are available for employees, including senior management, on what constitutes workplace sexual harassment.

 

  • Mitigate the potential risk of third-party sexual harassment: Inspect your workplace for the potential risk of sexual harassment from customers, clients, patients or members of the public, and implement appropriate protection measures.

 

  • Input measures to prevent victimisation: Encourage employees to report sexual harassment and put measures in place to prevent victimisation of those making the report.

 

  • Review your complaints-handling process: Review how your organisation deals with complaints, making sure the process is supportive, consistent and confidential.

 

  • Assess your leadership team’s response to harassment: Review your leadership team’s competency in identifying and responding to inappropriate workplace behaviours.

 

 

 

 

Helpful resources

 

 

 

 

 

*At the time this article was published the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 had passed Parliament but not received assent.