By Sarah Kemp, Associate and Law Clerks, Thilini Kotuwegoda and Madeline Madvad
The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (‘Respect at Work Act’) commenced on 11 September 2021. The Act amends the following legislation:
- Fair Work Act 2009 (Cth) (FW Act)
- Australian Human Rights Commission Act 1986 (Cth) (AHRC Act)
- Sex Discrimination Act 1984 (Cth) (SD Act).
What this means for employers
A summary of the changes arising from the [email protected] legislation is outlined below. Employers are responsible for ensuring these amendments are appropriately implemented into workplace policies and procedures, including complaints procedures.
Employers can be vicariously liable for unlawful sexual harassment in the workplace and, for this reason, should develop strategies aimed at preventing sexual harassment in the workplace.
State and Federal Courts and Tribunals have held that having a policy addressing sexual harassment in the workplace alone, is insufficient to absolve an employer from vicarious liability for sexual harassment in its workplace.
The following best practice approach will assist employers to protect against sexual harassment in the workplace:
- Regularly (at least annually) review and update workplace policies and procedures (including reporting procedures) regarding appropriate workplace conduct. Look for gaps or opportunities to improve policies, and consider obtaining legal advice to ensure policies continue to meet statutory obligations and are in line with recent case law developments.
- Regularly (at least annually) conduct appropriate workplace conduct refresher training for all employees – ideally provided by an external training provider. Keep records of attendance.
- Educate and train managers on how to manage reports of sexual harassment or other inappropriate conduct in the workplace and how to mitigate risk exposure in this regard.
- Be mindful of the positive duty to provide a safe workplace free from hazards (including sexual harassment) pursuant to occupational health and safety legislation and act accordingly.
Changes to the FW Act
Stop Sexual Harassment Orders
Workers experiencing sexual harassment in the workplace can now apply to the Fair Work Commission (FWC) for a ‘stop sexual harassment order.’ This is an expansion of the FWC’s existing anti-bullying regime, to enable the FWC to make orders stop sexual harassment at work.
For the FWC to make such an order, it must be satisfied that the sexual harassment did occur and that there is a risk of future workplace harassment.
Applications for stop sexual harassment orders can be made from 11 November 2021.
Other changes to the FW Act include:
- a new legislative note that provides that sexual harassment constitutes serious misconduct and a valid reason for dismissal under the FW Act; and
- the existing entitlements for compassionate leave now enable an employee to take up to two days of paid compassionate leave (unpaid for casuals), if the employee, employee’s current spouse or de facto partner experiences a miscarriage. This entitlement also applies in the event of a stillbirth or death of a child.
Changes to the AHRC Act
The amendments to the AHRC Act include:
- An expanded definition of ‘unlawful discrimination’ which clarifies that, in addition to a criminal complaint under the SD Act, victimising conduct can also form the basis for a civil action for unlawful discrimination.
- An extension of the time period to make a complaint of sexual harassment from 6 months from the date of alleged sexual harassment to 24 months.
Changes to the SD Act
The amendments to the SD Act include:
- An express prohibition of discrimination involving harassment on the grounds of sex.
- An extension of the application of the SD Act to members of parliament, judges, their staff and consultants, and state and territory public servants.
- Extending the protection from sexual harassment to all paid and unpaid workers by broadening the definition of ‘worker’ to include interns, apprentices, volunteers, and those who are self-employed.