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[email protected] – What you should know about increased workplace protections

[email protected] – What you should know about increased workplace protections

On 10 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill) received Royal Assent after it was passed by Federal Government earlier this month. The Bill operates to amend the following legislations:

  • Sex Discrimination Act 1984 (Cth);
  • Fair Work Act 2009 (Cth); and
  • Australian Human Rights Commission Act 1986 (Cth).

Background

In 2020, Kate Jenkin’s drafted the Australian Human Rights Commission’s 2020 “[email protected]” Report ([email protected] Report). The Federal Government adopted 6 of the 55 recommendations outlined in the [email protected] Report.  For reference, the [email protected] Report and the Government’s response to the [email protected] Report are found here:

The [email protected] Report found that the existing legal and regulatory frameworks for addressing workplace sexual harassment were restrictive, complex, and limited, highlighting Australia’s lag behind other countries in preventing and responding to sexual harassment in workplaces. This comes in the spotlight particularly at the height of media continuously reporting on sexual harassment at workplaces not only in Australia, but internationally.

These amendments to the current legal frameworks aim to ensure that more workers, particularly, the vulnerable are better protected and empowered to address unlawful conduct by simplifying, clarifying and minimising any confusion within legislative frameworks.

Here is what you need to know

Sex Discrimination Act (SDA)

  • Objective of the SDA – one of the findings in the [email protected] Report explained that gender inequality was a key driver of workplace sexual harassment. It was recommended that the SDA could better achieve its objects and clarify its underlying purpose and foundational principles, in order to provide guidance to workers, workplaces, the community and courts. As such the object of the SDA will now make it clear that in addition to the elimination of discrimination and harassment, it aims to achieve, so far as practical, equality of opportunity between men and women.
  • Sex-based harassment is expressly unlawful conduct – although sex-based harassment is already prohibited under the SDA, the [email protected] Report found that it was not well understood. If a person alleges that they are being harassed because of their sex, but the conduct does not amount to ‘conduct of a sexual nature’, the complaint can still be assessed and accepted as one alleging sex discrimination. As case law may not be understood readily by the community, the amendment provides further clarity by expressly prohibiting harassing a person on the ground of their sex. As such, this conduct is clarified by defining it as unwelcome conduct which needs to meet the threshold of offensive, humiliating, intimidating, and seriously demeaning. However, it does not capture mild forms of inappropriate conduct. Sex-based harassment may include the following:
    • Asking intrusive personal questions based on a person’s sex.
    • Making inappropriate comments and jokes to a person based on their sex.
    • Displaying images or materials that are sexist, misogynistic or misandrist.
    • Making sexist, misogynistic or misandrist remarks about a specific person.
    • Requesting a person to engage in degrading conduct based on their sex.
  • Broadening the scope to include all paid and unpaid workers – previously, unpaid workers were not protected against sexual harassment under the SDA. The change extends sexual harassment protections to all paid and unpaid workers including interns and volunteers. The new definition adopts the concept of ‘worker’ and ‘persons conducting a business or undertaking’ which is used in the Work Health Safety laws.

Fair Work Act (FWA)

  • Sexual harassment as a valid reason for dismissal – sexual harassment was only recently included in the definitions of what could constitute serious misconduct under Fair Work Regulations 2009 (Cth). The bill will now amend the FWA to further clarify and provide employers the explicit understanding that sexual harassment can be a valid reason for dismissal in determining whether a dismissal was harsh, just or unreasonable.
  • FWC stop sexual harassment orders – to prevent the risk of future harm, the Fair Work Commission (FWC) has the power to only grant a stop bullying order. In addition to these powers, the amendments now explicitly state that it is within the FWC’s powers to make an order to stop sexual harassment in the workplace. Both orders are to prevent risk of future harm. The FWC must be satisfied that that the harassment has occurred to make such order, and orders would not be available where there is no risk of harassment occurring again, for example when the person who harassed the worker is no longer employed at the workplace.
  • Miscarriage leave – previously, employees were only entitled to compassionate leave when a member of the employee’s immediate family or household contracts or develops a personal illness or sustains a personal injury that poses a serious threat to their life or died. The amendment expands this definition to ensure that a miscarriage constitutes grounds for compassionate leave. An employee/employee’s spouse/de facto partner is now entitled to two days’ paid compassionate leave. For casual employees, this leave will be unpaid.

Australian Human Rights Commission Act

  • Victimizing conduct can form the basis of a civil and criminal proceedings – the [email protected] Report highlighted that there was uncertainty as to whether a civil complaint could be made for victimising conduct. The change would make clear that a person who experiences victimisation as a result of making a complaint under the Sex Discrimination Act is now able to commence civil proceedings against the alleged perpetrator in the Federal Court or Federal Circuit Court. Note that criminal proceedings can still be initiated by the Australian Federal Police in relation to victimising.
  • Extended time period for complaints – the amendments extend the time period to make complaints to the AHRC from six months to two years. This reassures complainants that their complaints will not be dismissed within two years from when the alleged conduct took place.

Takeaway

By way of the Federal Government’s commissioning the [email protected] Report and adopting some of the recommendations, it makes clear that their objective is to facilitate a safe working environment. The amendments make clear certain conduct is unlawful and provides employers certain power to dismiss employees engaging in sexual harassment.

One of the key legislative recommendations from the [email protected] Report that was not implemented into the Bill was the imposition of a positive duty requiring employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation.

Whilst the Government did not include imposing a positive duty on employers in the Bill, it would be prudent for workplaces to be aware of these changes, particularly ensuring they do not deny employees compassionate leave for miscarriage.

We recommend that employers take time to update their current training and policies to reflect these amendments at law. This may include protocol with reporting and dealing with sexual harassment in the workplace.

How we can help

At JHK Legal we are well versed in assisting businesses preparing and updating their workplace training and policies to ensure it is compliant with the existing laws. If you think you might require assistance with understanding the new changes or to update your policies to reflect these changes, please do not hesitate to reach out.

Written by, Belinda Taing

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