As foreshadowed in our April blog (here), on 24 June 2021 the Federal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 into Parliament.
The Bill is a response to the Sex Discrimination Commissioner’s 2019 report Respect@Work. It seeks to amend both the Fair Work Act 2009 (FW Act) and the Sex Discrimination Act 1984 (SDA).
The proposed amendments to the FW Act include:
- making miscarriage a valid reason to take up to two days of paid compassionate leave (unpaid for casuals) – consistent with the existing entitlement for other types of bereavement under the National Employment Standards;
- amending the existing anti-bullying provisions to enable the Fair Work Commission to make a ‘stop order’ when a worker is being sexually harassed;
- clarifying that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable; and
- amending the definition of ‘serious misconduct’ in the Fair Work Regulations to include sexual harassment.
The proposed changes to the SDA include:
- a new object clause stating that, in addition to the elimination of discrimination and harassment, the Act aims to achieve equality of opportunity between men and women;
- expanded definitions of ‘worker’ and the introduction of the concept of ‘Person Conducting a Business or Undertaking’ (as used in work health and safety law) so as to protect workers not previously covered under the SDA, including interns, volunteers and self-employed workers;
- expanding the SDA’s coverage and protection to public servants, including State government employees, members of parliament and their staff, and judges and their staff;
- a new provision to make it clearer that it is unlawful to harass a person on the ground of their sex – in other words, not requiring that the harassing conduct be sexual in nature. The new term ‘sex-based harassment’ would be defined as ‘unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances in which… a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated’; and
- clarifying the ancillary liability provision under the Act to make a person liable if they assist another person to harass someone – whether by sexual harassment or sex-based harassment.
Respect@Work recommended further changes to the SDA, including introducing a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation. However, the Government considers that a positive duty already exists. It remains to be seen whether this issue will lead to a debate as the Bill progresses through Parliament.
Tips for employers
Employers should closely monitor the progress of this Bill and, in anticipation of its likely passage, review their policies and processes relating to workplace sexual harassment, grievances and investigations, and consider whether they might need to be updated.
As always, employers should also ensure that their staff are aware of acceptable standards of behaviour and conduct whilst at work, what they can do if they experience a problem, and that they will be supported if they make sexual harassment complaints.
For further information, please contact our national Employment, Workplace Relations and Safety team.