On 24 June 2021, the Federal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendments Bill 2021 (Cth) (Bill) into the Senate. The Bill amends both the Sex Discrimination Act 1984 (Cth) (SDA) and the Fair Work Act 2009 (Cth) (FWA) in response to the Respect@Work report (the Report) and implements many of the recommendations of the Report. The Bill aims to “strengthen, simplify and streamline the legislative and regulatory frameworks that protect workers from sexual harassment and other forms of sex discrimination in the workplace.”
The Bill follows the release of “A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces” (Roadmap) by the Federal Government. The Bill gives effect to some legislative amendments set out in the Roadmap and will implement the Report’s recommendations numbered 16, 20, 21, 22, 29 and 30. For some discussion on the Roadmap (and other sexual harassment guidance materials), see our earlier article here.
- clarifies that sex-based harassment is expressly prohibited under the SDA and includes an objective in the SDA to achieve “substantive equality between men and women”;
- includes a “reasonable person test” for the purposes of determining objectively whether a reasonable person would have anticipated that the person harassed would be “offended, humiliated or intimidated”;
- adopts the terms ‘worker’ and ‘PCBU’ which are used in the Work Health and Safety legislation and extends protections under the SDA to persons not previously covered, such as interns, volunteers, self-employed workers and public servants;
- clarifies that victimisation can form the basis of both a civil action and a criminal action under the SDA;
- amends the FWA to clarify that sexual harassment can be a valid reason for dismissal for the purposes of unfair dismissal claims;
- increases the time in which a person can make a complaint to the Australian Human Rights Commission after the alleged conduct occurs from six months to two years;
- gives the Fair Work Commission power to make an order to stop workplace sexual harassment; and
- allows employees to take two days of paid compassionate leave (or unpaid for casuals) in the event of a miscarriage.
The Bill does not include a positive duty on employers to ensure, so far as is reasonably practicable, that persons are not exposed to health and safety risks related to sexual harassment. The Roadmap considers that there is already such duty placed on employers to eliminate or minimise this risk.
In their recent media release, The Australian Council of Trade Unions (ACTU) stated that, whilst the stop sexual harassment orders and paid compassionate leave for miscarriages are positive steps, the Bill fails to act on many of the recommendations in the Respect@Work report. ACTU President, Michele O’Neil, commented that the Bill “falls far short of the changes needed to protect women in the workplace from sexual harassment and violence which we know is a systemic problem.”