Legislation update

Federal Parliament passes workplace sexual harassment Bill — Respect@Work

By Andrew Tobin and Adele Garnett / 12 November 2021
4 min.
Worthwhile read for: Employers, Business Owners, Management

In this article, Partner Andrew Tobin, Senior Associate Adele Garnett and Solicitor John Hickey discuss the latest legislative amendments with respect to sexual harassment in Australian workplaces.

On 11 September 2021 the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (the Act) commenced operation.  The long-awaited enactment of this legislation is a critical step forward for victims of sexual harassment across Australia.

The Federal Parliament, however, stopped short of imposing a positive duty on employers to take reasonable steps to prevent workplace sexual harassment.  Accordingly, the burden continues to remain on victims of sexual harassment to enter into lengthy complaint processes at their own cost and risk in order to protect themselves from ongoing harm.

The Act gives effect to several legislative amendments recommended in the Australian Human Rights Commission’s (AHRC) Respect@Work Report.  The Respect@Work Report provided a suite of recommendations to improve the legal and regulatory framework relating to sexual harassment in Australia.

Relevantly, the Act:

  • introduces a new object clause in the Sex Discrimination Act 1984 (Cth) (SD Act) which provides that the SD Act aims to achieve, so far as practicable, equality of opportunity between men and women.  This amendment is in response to the Respect@Work’s finding that gender inequality is a key driver of workplace sexual harassment;
  • inserts a new provision in the SD Act to make it expressly clear that it is unlawful to harass a person based on their sex.  This new provision prohibits any harassment by reason of the sex of a person (e.g., a woman’s pregnancy), or a characteristic that relates to or is attributed to the sex of a person (e.g., carer’s responsibilities).  This amendment addresses the Respect@Work Report’s finding that women often experience harassing conduct based on their sex, but which is not necessarily sexual in nature;
  • expands coverage of the SD Act to include interns, volunteers, self-employed workers, members of Parliament, their staff, and judges at all levels of government;
  • clarifies that victimising conduct can form the basis of a civil action for unlawful discrimination in addition to a criminal complaint under the SD Act;
  • extends the time period to file a sexual harassment complaint to the AHRC to two years. Previously, the President of the AHRC had discretion to terminate a sexual harassment complaint if it was not lodged within six months of the alleged act(s), omissions, or practices; and
  • allows the Fair Work Commission (FWC) to make “stop sexual harassment” orders to prevent sexual harassment in the workplace, irrespective of whether the harassing conduct occurred once or on multiple occasions.

The regulations to the Fair Work Act 2009 (Cth) (FW Act) have also been amended to provide expressly that sexual harassment can be a valid reason for dismissal, as one example of ‘serious misconduct’, under the FW Act. This amendment simply clarifies the existing position at law.

In addition to implementing the above recommendations from the Respect@Work Report, the Act amends the existing entitlement to compassionate leave in the FW Act to include miscarriage as a permissible occasion.  The effect of this amendment is that employees may now take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or their current spouse or de facto partner, has a miscarriage.  Miscarriage is defined in accordance with the general medical meaning of miscarriage — i.e., the spontaneous loss of the embryo or fetus before 20 weeks’ gestation.

Employers must be cognisant of these legislative changes and ensure that their current workplace policies and procedures are up to date in accordance with the Act.

If you require any further information or clarification, or for assistance with reviewing existing sexual harassment policies and processes to ensure that they are legally compliant, please contact our Workplace and Employment team at HopgoodGanim Lawyers.

Andrew Tobin
Andrew is a Partner and the head of HopgoodGanim Lawyers’ Workplace and Employment practice.
Adele Garnett
Senior Associate
Adele is a Senior Associate in our Workplace and Employment practice.

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