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Late last week, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 received royal assent and took effect as law.
These changes formed the legislative response to the Australian Human Rights Commission’s Respect@Work Report, with implications under the following forms of legislation, which impact Australian employers –
- Fair Work Act 2009 (Cth)
- Fair Work Regulations 2009 (Cth)
- Sex Discrimination Act 1984 (Cth)
- Australian Human Rights Commission Act 1986 (Cth)
The aim of the legislation was to make changes to key pieces of employment-related legislation, to take active steps towards reducing the prevalence of sexual harassment and gender-based discrimination in Australian workplaces.
The changes make it expressly clear to employers, that workplace sexual harassment and sex-based discrimination must be taken seriously in the workplace, and that there can be serious consequences for both employees and employers who permit or exhibit such behaviours.
Please see a summary of the changes below.
Fair Work Act and Fair Work Regulations
In terms of the Fair Work Act 2009, and the Fair Work Regulations, whilst on paper the changes appear minor, they provide additional avenues for both employers and workers to address sexual harassment in the workplace. The changes include: –
Stop Sexual Harassment Orders
In the same way the Fair Work Commission (FWC) can issue orders to stop bullying at work, the FWC will now be provided with the power to issue orders to stop sexual harassment in the workplace.
The purpose of this amendment was to give workers access to an accessible, low cost and relatively informal mechanism to deal with complaints relating to sexual harassment in the workplace. An eligible worker who believes that they’ve been sexually harassed at work, can apply to the FWC for an order to stop the sexual harassment. For the orders to be issued, the FWC needs to be satisfied that the harassment has occurred, and that the employee remains exposed to future harassment.
There is a two-month transitional period for these provisions to take effect, to allow the FWC to implement the appropriate processes.
Sexual Harassment now listed as a confirmed form of serious misconduct
Under the Fair Work Regulations 2009, sexual harassment is now included as a confirmed form of serious misconduct, and therefore a valid reason for dismissing an employee.
However, before taking action relying upon such provisions, our clients should still seek advice by calling us on 1300 55 66 37.
Introduction of ‘Miscarriage leave’
The changes to the Fair Work Act 2009 included the introduction of ‘Miscarriage Leave’ for employees (and their partners), who experience a miscarriage. The legislation confirms that employees will now have access to up to two days of paid compassionate leave (unpaid for casuals) if the employee, or their spouse or de facto partner, has a miscarriage. This provision extends on the 2020 inclusions to the Fair Work Act 2009 relating to a stillbirth or death of a child.
Additional changes with implications for Employers
Updates to the Sex Discrimination Act 1984 (The Act) included –
- In additional to sexual harassment and unlawful discrimination, sex-based harassment is now expressly presented as a form of unlawful conduct under the Sex Discrimination Act 1984. For context, sex-based harassment includes a range of conduct considered to be sexist, misogynistic or misandrist, with examples of making offensive comments or requests.
- Unpaid workers (as well as paid workers) are now expressly protected under the Act from sex-based and sexual harassment. This was achieved by the legislation adopting the concepts of a ‘worker’ and ‘person conducting a business or undertaking’ from WHS legislation. This means that interns, apprentices, volunteers, and those who are self-employed, are now protected.
- The application of the Act has also been broadened to include state and federal parliament, judges and their staff and public servants.
- Persons who are threatened or are subject to detriment as a result of reporting these behaviours or making a complaint to the Australian Human Rights Commission, can now pursue civil and criminal proceedings under the Act.
- Ancillary and/or accessorial liability under the Act is extended to sexual harassment and sex-based harassment. This means that any person who ‘causes, instructs, induces, aids or permits’ another person to participate in a form of unlawful conduct under the Act, is considered to have engaged in the same conduct.
Employers should use this opportunity to review their current policies and procedures in order to address or eliminate sexual harassment in the workplace.
Having an (idle) workplace policy is unlikely to be enough to ensure your business is protected and your workers supported. ER Strategies recommends reviewing your current practices, including any policies and training materials, to ensure they reflect the new standards around sexual harassment and sex-based harassment in the workplace.
In the event you don’t currently have any policies or training in this area within your business, ER Strategies highly recommends introducing these measures and actively engaging staff in discussions around sexual harassment, including what it is and how to report it.
Clients of ER Strategies can contact the team on 1300 55 66 37 during business hours (AEST) to discuss their specific situation, or login to Online HR to download a copy of our Sexual Harassment Prevention Policy.