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Australia: Additional Legislative changes introduced to tackle Workplace Sexual Harassment

Following the recent developments to address sexual harassment in the workplace (as outlined in our April 2021 Client Alert), on 24 June 2021, the Federal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill). The purpose of the Bill is to improve and streamline the legislative frameworks that protect workers from sex discrimination and harassment.

The Bill was released in response to the recommendations made by Sex Discrimination Commissioner, Kate Jenkins, in her Respect@Work Report 2020 (Report).  If passed, the Bill would give effect to recommendations 16, 20, 21, 22 and 29 of the Report.

The Bill proposes several amendments to the Sex Discrimination Act 1984 (SD Act) and the Fair Work Act 2009 (FW Act). We explain these amendments below.

The Bill is currently before the Senate and is expected to pass later this year.

Changes to the SD Act include:

  • Amending the SD Act to make it clear that it is unlawful to harass an individual based on their sex, known as ‘Sex-based harassment’. This expands the SD Act’s application to different types of conduct not previously caught, including harassment that is based on an individual’s sex but is not necessarily sexual in nature.
  • Expanding the timeframe to make a complaint to the Australian Human Rights Commission from six months to 24 months after the alleged conduct took place. The intention of this amendment is to reduce procedural barriers for complainants under the SD Act.
  • Broadeningthe scope of the SD Act to protect interns, volunteers, self-employed workers, members of Parliament, their staff, and judges at all levels of government.
  • Clarifying that civil actions for victimisation in relation to sexual harassment could also be brought in the Federal Court and Federal Circuit Court.

Changes to the FW Act include:

  • Empowering the Fair Work Commission to issue a new stop sexual harassment order in the workplace. Much like an anti-bullying order, the intention of this order is to stop the risk of future harm. An order can only be granted if the Commission is satisfied that the sexual harassment has happened and that there is a risk of the harassment happening again. The Commission can make an order to stop sexual harassment following a single instance of sexual harassment, that is, it is not necessary for the conduct to be repeated behaviour.
  • Amending the FW Actto express that workplace sexual harassment is a valid reason justifying dismissal in unfair dismissal matters.
  • Enabling employees who have a miscarriage (or their spouse or de facto partner) to take the minimum compassionate leave entitlement of two days’ paid leave (unpaid for casuals).

Key Action Points for Human Resources and In-house Counsel 

In light of the proposed new changes, employers are advised to:

  • review their workplace policies to ensure that they are in line with the broadened scope of the SD Act and additional entitlements under the FW Act; and
  • consider whether their internal procedures, complaint processes and training sessions should be updated to reflect the proposed amendments.