A spotlight has recently been shone on sexual assault, sexual discrimination, and sexual harassment in workplaces around the country – ranging from mine sites to the halls of Parliament. New legislation attempts to address the problem.
A significant issue confronting our society is discrimination in the workplace and the preservation of a safe working environment for all employees, particularly women who feel unsafe or unheard at work.
The perception that many workplaces have a male dominated culture and a “boys club” mentality has led to a view that there has been a failure to adequately support female victims or punish the men who perpetrate this culture. This was finally brought to a very public head in Federal Parliament with the fallout from the saga surrounding the alleged rape of Brittany Higgins earlier this year.
On 2 September 2021 the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (“the Act”) was passed by both Houses of Parliament and came into effect on 10 September 2021. The Act will impact businesses Australia wide.
The purpose of the Act is 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’. In particular, the reforms are aimed at advancing women’s safety and economic security in the workplace.
Introductions and Amendments
The Act implements several recommendations of the Australian Human Rights Commission’s 2018 report, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces by amending the Australian Human Rights Commission Act 1986, the Fair Work Act 2009, and the Sex Discrimination Act 1984.
The Act makes several significant amendments to this legislation, including:
1. Prohibits sex-based harassment
The Act amends the Sex Discrimination Act to clarify that it is unlawful to harass a person on the ground of their sex, however. the provision is limited to inappropriate conduct based on a person’s sex that meets the threshold of ‘offensive, humiliating or intimidating’. As a result, it may not capture some of the less overt forms of sexual harassment.
This amendment is not entirely new, but clarifies and codifies existing case law which establishes sex-based harassment is already unlawful under the Sex Discrimination Act.
2. Expands coverage of the Sex Discrimination Act
The Act ensures that persons not previously covered under the Sex Discrimination Act, such as interns, volunteers, and self-employed workers, are protected from harassment. The Act also ensures public servants at all levels of government are protected in the same way as other workers.
Further, it prohibits a person from assisting another person, as well as engaging themselves, in sexual harassment or sex-based harassment.
This change again expands and clarifies the existing laws that already impose a duty on employers to protect workers from risks to health and safety. As such, this change should not impose an increased burden on businesses.
3. Simplifies processes for complaints
The Act clarifies that victimising conduct can form the basis of a civil action for unlawful discrimination, in addition to a criminal complaint under the Sex Discrimination Act. It also extends the period of time between an alleged incident and the lodging of a complaint from 6 months to 24 months.
4. Availability of ‘stop orders’
The Act clarifies that the Fair Work Commission can make an order to stop sexual harassment in the workplace to prevent further or ongoing workplace sexual harassment.
The new provisions afford workers access to a fast, low cost, informal mechanism to deal with complaints. They also expand avenues available to the employee to seek redress.
5. Sexual harassment a valid reason for dismissal
The Act clarifies that sexual harassment can be conduct amounting to a valid reason for dismissal.
This ensures that an employer may dismiss an employee because of their sexual harassment of other employees, giving the employer a defence to a claim for unfair dismissal when the termination was based on the employee’s harassment.
6. Miscarriage leave
The Act also expands the minimum leave entitlement to ensure that a miscarriage constitutes grounds for compassionate leave. These amendments ensure that when an employee, or an employee’s partner, has a miscarriage, the employee is entitled to two days’ paid compassionate leave (unpaid for casuals).
This means that an employer is now under a legal obligation to allow an employee to take compassionate leave following a miscarriage.
Overall Impact of the Act
The Act’s introduction will have impacts on both employers and employees Australia wide, however, the impacts predominantly relate to the expansion of rights for the employee, rather than placing additional burdens on employers.
Overall, the Act expands the scope of existing sexual harassment prohibitions by promoting clarity and reducing barriers for sexual harassment complainants.
The amendments strengthen the existing national legal frameworks that deal with sexual harassment to ensure all Australians are protected from workplace sexual harassment.
Employees need to know that they have rights if they are sexually harassed, and employers need to know that they need to address and eliminate sexual harassment or potentially face consequences.
The more significant impacts of the Act in changing the workplace culture of particular workplaces around the country will hopefully become evident in due course.