Government passes legislation enhancing protections against sexual harassment

It is in the interests of all Australians and employers to ensure that every workplace is safe, respectful and has a zero tolerance of harassment, including harassment of a sexual nature. In view of changes pursuant to the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, employers are encouraged to revisit workplace procedures and policies to ensure that they are in line with that legislation and updated where necessary.

On 2 September 2021, the Government passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (the Respect@Work Act) which contains important reforms to address sexual harassment in Australian workplaces and implements a number of recommendations from the Respect@Work Report published by the Australian Human Rights Commission (AHRC).

The Respect@Work Act:

• Introduces a new definition of “harassment on the ground of sex” into the Sex Discrimination Act 1984 (the SD Act) and specifies that harassment on the ground of sex is conduct that is “unwelcome and seriously demeaning in nature in relation to the person harassed” and done so in “circumstances in which a reasonable person would anticipate the possibility that the person harassed would be offended, humiliated or intimidated.”
• clarifies that harassing a person on the basis of sex is prohibited under the SD Act;
• provides a new object in the SD Act to make it clear that, together with the elimination of discrimination and harassment, the SD Act aims ‘to achieve, so far as practicable, equality of opportunity between men and women’;
• Clarifies that any conduct that constitutes victimisation under the SD Act can form the basis of a civil action for unlawful discrimination;
• extends the timeframe for which a complaint can be made to the AHRC from 6 months to 24 months, thereby reducing some procedural barriers for complainants.

The Respect@Work Act also contains important reforms to address sexual harassment in Australian workplaces. Specifically, it:

• recognises that sexual harassment is a workplace health and safety issue;
• broadens the scope of the SD Act by adopting the concepts of ‘worker’ and ‘person conducting a business undertaking’ from the model Work Health and Safety Act 2011 so as to capture all paid and unpaid workers and thereby protecting volunteers, interns and those who are self-employed;
• will enable the Fair Work Commission to make Orders to stop sexual harassment in the workplace (equivalent to the “stop bullying order” regime);
• clarifies that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable;
• enables an employee to take compassionate leave if they, or their spouse or de facto partner, has a miscarriage. This measure is intended to reduce discrimination against pregnancy and enhance the economic security of woman;

The Explanatory Memorandum to the Respect@Work Act provides guidance as to the definition of “harassment on the ground of sex” introduced as section 28AA of the SD Act and recognises that the “conduct” in question can include spoken statements or written letters, text messages, social media messages or emails and further, may include:

• asking intrusive personal questions based on the person’s sex;
• making inappropriate comments and jokes to a person based on their sex;
• displaying images or materials that are sexist, misogynistic or misandrist;
• making sexist, misogynistic or misandrist remarks about a specific person;
• requesting a person to engage in degrading conduct based on their sex.

The Explanatory Memorandum identifies that the definition is not intended to capture mild forms of inappropriate conduct based on a person’s sex that are not of a sufficiently serious nature to meet the threshold of offensive, humiliating or intimidating, as well as seriously demeaning.

The changes will commence on the day after the Respect@Work Act receives assent however, to assist the Fair Work Commission to adjust to the changes, the changes to its regime will take effect two months after that date. However, workers can still make an application for relief prior to the commencement.  The relief is retrospective in operation, and the Fair Work Commission will be able to make an order if it is satisfied sexual harassment has occurred, and that there is a material risk of the harassment occurring again if an order is not made.

A number of the recommendations contained within the Respect@Work Report were not addressed in the legislation but based on statements by the Attorney General and the Sex Discrimination Commissioner and Chair of the Respect@Work Council, it appears that work to progress other legislative recommendations is ongoing.

It is in the interests of all Australians and employers to ensure that every workplace is safe, respectful and has a zero tolerance of harassment, including harassment of a sexual nature. In view of the changes pursuant to the Respect@Work Act, employers are encouraged to revisit workplace procedures and policies to ensure that they are in line with Respect@Work Act and updated where necessary.

Learn more about Automic Group’s professional services capabilities.