Sexual harassment legislation changes THE SEX Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 passed both houses of Parliament on 2 September.
The Bill will expand coverage of the Sex Discrimination Act, and a Fair Work Act amendment will allow workers to apply to the Fair Work Commission for a Stop Sexual Harassment Order. The 2020 Respect@Work Report by Sex Discrimination Commissioner Kate Jenkins contained 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 these recommendations to help reduce the prevalence of sexual harassment and gender-based discrimination in Australian workplaces.
It aims to better protect and empower workers, particularly vulnerable workers, in respect of workplace sexual harassment by making changes to the Fair Work Act, Sex Discrimination Act and the Australian Human Rights Commission Act.
Once the Bill receives royal assent the following notable changes will take effect: FAIR WORK ACT:
• It will be explicitly stated that sexual harassment in connection
with your employment can be a valid reason for dismissal • If you're sexually harassed at work you can apply for a Fair Work Commission ‘Stop Sexual Harassment Order’ • If you or your partner has a miscarriage, you'll each be entitled to 2 days’ paid compassionate leave (unpaid for casuals). SEX DISCRIMINATION ACT:
• Discrimination involving harassment on the ground of sex will be expressly prohibited • Sexual harassment protections will be extended to all paid and unpaid workers, including volunteers, interns and the selfemployed • The Act applies to allow complaints by, and against, members of Parliament, Commonwealth, state and territory judges, and state and territory public servants HUMAN RIGHTS COMMISSION ACT:
• In recognition of the pressures faced by complainants when speaking up, the period available to make a complaint under the Sex Discrimination Act to the Human Rights Commission will be extended from 6 months to 2 years But not everything was included, and 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'll wait to see how regulators address this with enforcement action under relevant WHS/OHS legislation. Other recommendations not implemented include a recommendation empowering the Human Rights Commission to inquire into systemic unlawful discrimination, including systemic sexual harassment, among others.
But the Bill does send 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 as 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. Employers need to update their sexual harassment policies to account for the changes recommended in a wide range of reports released over the past 2 years, including providing details of all the options available for complainants. They need to conduct risk assessments, record sexual harassment risks in their risk register, have a prevention plan and record metrics.
Your employer should also update training and policies to reflect the changes, particularly so staff know if they're able to access the Fair Work Commission’s Stop Sexual Harassment Order jurisdiction. 30
https://www.maddocks.com.au/insights/changes-to-sexual-harassment-legislation-with-the-passage-of-the-respect-work-bill
