ADA HR Feature

ADA HR FEATURE

Respect at Work Act Passes Parliament

Changes to Sexual Harassment Legislation

Sexual harassment is commonly highlighted as a serious workplace issue; however, the prevalence of sexual harassment in Australian workplaces suggested that the existing legislative framework required amendment to provide greater protection for workers.

The Federal Government recently undertook a National Inquiry into sexual harassment in the workplace, known as the Respect@Work Inquiry. This inquiry resulted in proposed legislative changes to the Sex Discrimination Act 1984 and the Fair Work Act 2009 (FW Act). These proposed changes have now been passed by Parliament, under the Sex Discrimination and Fair Work (Respect at Work) Amendment Act (Respect at Work Act).

What is being amended?

The Respect at Work Act implements various changes to the FW Act and Sex Discrimination Act, aimed at strengthening Australia’s legislation with respect to sexual harassment.

Expansion of the Sex Discrimination Act

The Respect at Work Act has expanded th e Sex Discrimination Act to include all workers, which means those not previously covered by the Sex Discrimination Act, such as interns, volunteers and self-employed workers are now protected. For practices, this means that those engaged as independent contractors, and dental students on placement are covered by the legislation. These changes bring the Sex Discrimination Act in line with the provisions of the model Work Health and Safety legislation.

Prohibition on Sex-Based Harassment

The Sex Discrimination Act now prohibits harassment on the ground of sex (as well as the existing prohibition on sexual harassment). Sex-based harassment is defined as unwelcome conduct of a seriously demeaning nature by reason of the person’s sex, in circumstances which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimated. The unwelcome conduct must relate to: a) The sex of the person harassed; b) a characteristic that appertains generally to persons of the sex of the person harassed; c) a characteristic that is generally imputed to persons of the sex of the person harassed This inclusion will ensure that harassment on the basis of someone’s sex, as well as on the basis of a characteristics that relate to sex or that society generally imputes to a particular sex, is covered. The amendment provides that harassment on the ground of sex includes harassment by reason of the sex of the person harassed. For example, it would be unlawful under the Sex Discrimination Act for a patient to repeatedly harass a male dental assistant on the basis that he is not as ‘attractive and attentive’ as the female dental assistant and does not offer the same ‘customer experience’ because he is a male. In addition, the new provisions provide that harassment on the ground of sex includes harassment by reason of a characteristic (or characteristics) that appertains generally to persons of that sex. This could cover instances where someone is harassed because of a characteristic associated with members of that person’s sex, such as anatomical attributes. This could also include a male staff member being belittled by a colleague for having an “excessively high-pitched voice”, “sounding more like a girl than a boy” and wearing a pink scrubs to work instead of the stereotypical blue scrubs for males. The amendment also provide that harassment on the ground of sex includes harassment by reason of a characteristic that is generally imputed to persons of that sex. This would include harassment on the grounds of gendered stereotypes, including characteristics generally imputed by society to one sex or the other, such as caring responsibilities being the domain of women. For example, it would be unlawful under the Sex Discrimination Act for a male dentist to harass a female worker on the basis that she “should be at home taking care of her husband and children” and “is a selfish and terrible mother” for remaining in the workforce. The term ‘unwelcome conduct’ is not defined in the Sex Discrimination Act, however it is an established concept at common law and is generally factually specific. It is generally accepted that it is conduct that is not solicited or invited, and the individual regards that conduct as undesirable or offensive or conduct that is disagreeable to the person to whom it was directed. The concept ‘of a seriously demeaning nature’ is to be interpreted in accordance with its ordinary meaning. By definition, to ‘demean’ is to debase or degrade another person. The inclusion of this term is intended to provide an appropriate limit on the scope of conduct captured. These new provisions are relevant to both employees, as well as employers who can be held liable (vicariously) for the conduct of their workers. Ancillary liability provisions apply, meaning for example, a practice owner or manager may be held liable as an ‘accessory’ to the sex-based harassment if they aided and permitted its continuation.

Victimisation

Victimising conduct (such as threatening or subjecting a person to detriment for taking action such as lodging a complaint) can now form the basis of a civil action for unlawful discrimination (in addition to a criminal complaint) under the Sex Discrimination Act. Whilst victimisation was already unlawful under the Sex Discrimination Act, there was legal uncertainty as to whether it could give rise to a civil claim, as well as a criminal complaint. The amendment will clarify that people who experience victimisation conduct for the purposes of the SD Act can make a complaint to the Australian Human Rights Commission and, if their complaint is terminated, initiate civil proceedings against the alleged perpetrator.

Complaints

Prior to the amendments, complaints of sexual harassment under the Sex Discrimination Act made 6 months or more after the alleged conduct could be terminated. However, the amendments enable a complainant to lodge a complaint under the Sex Discrimination Act within 24 months of the alleged unlawful conduct, therefore expanding the time frame significantly. This timeframe was recommended in the Respect@Work Report to reduce procedural barriers arising from complainants being delayed in making a complaint under the SD Act.

Stop Sexual Harassment Order

The existing anti-bullying jurisdiction in the Fair Work Act has now been extended to cover sexual harassment. The Fair Work Commission (FWC) will now be able to issue orders to stop sexual harassment in the workplace. Such orders are preventative, rather than monetary. In addition, these orders are intended to prevent the risk of future harm. The FWC must be satisfied that the harassment has occurred to make an order, and orders would not be available in cases where there is no risk of harassment occurring again, such as where the person who harassed the worker is no longer employed at the workplace

Unfair Dismissal

The FW Act has also been amended to include sexual harassment in connection with the employee’s employment as a valid reason for dismissal when determining whether a dismissal was harsh, unjust or unreasonable. In addition, the Fair Work Regulations have been amended to include sexual harassment in the definition of serious misconduct.

Miscarriage Leave

ADA HR FEATURE

The Fair Work Act has been amended to vary the existing entitlement to compassionate leave to 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. Miscarriage is defined as the spontaneous loss of the embryo or foetus before 20 weeks’ gestation. This is based on the general medical meaning of miscarriage.

What do these changes mean for dental practices?

Dental practices are encouraged to familiarise themselves with the new provisions of the Sex Discrimination Act and Fair Work Act arising out of the changes introduced under the Respect at Work Act. Sexual harassment remains a significant issue within Australian workplaces, and practices should take active steps to identify and address workplace sexual harassment. Preventative action is key in reducing sexual harassment and is important in light of vicarious liability provisions associated with sexual harassment. Practices should ensure they have clear policies on acceptable workplace conduct and sexual harassment and seek guidance from the ADA HR Advisory Service when dealing with any complaints which may arise in the workplace.

For further information on this article, please contact ADA HR Advisory Service on 1300 232 462.

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