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After an 18-month inquiry into sexual harassment in Australia’s workplaces, the Sex Discrimination Commissioner’s Respect@Work Report was released. The Report made 55 recommendations for changes to various pieces of legislation relating to workplace bullying, harassment, and leave entitlements as well as the rights of victims to seek redress.
In early September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 was passed in Federal Parliament in response to the Respect@Work Report.
What changes will be made to the law?
The recommendation changes seek to address how sexual harassment is dealt with in workplaces and employers and employees alike should be mindful of the following changes, which are expected to take effect in the coming months:
It has now been established that civil claims can be brought against those who victimise others in the workplace.
There is clarification that dismissing a perpetrating employee for sexual harassment is a valid reason for dismissal, in cases where a terminated employee may be considering bringing an unfair dismissal claim under the Fair Work Act 2009 (Cth).
There will be an extension on the current two days of paid compassionate leave (as set out in the Fair Work Act 2009 (Cth)) to include circumstances where an employee, or the employee’s current spouse or de facto partner, has a miscarriage.
The scope of the Sex Discrimination Act 1984 (Cth) will be broadened so that more workers are protected against sexual harassment. The broadening of the scope now means that previously overlooked workers such as volunteers and interns, the self-employed, state public servants, members of parliament and judges, and their staff now have avenues for redress.
The anti-bullying jurisdiction of the Fair Work Act 2009 (Cth) will be increased, allowing workers to seek orders to stop sexual harassment in their workplace.
Previously, the timeframe for lodging complaints with the Australian Human Rights Commission about sex discrimination and sexual harassment in the workplace was six months. This will increase to 24 months.
Are any key recommendations missing?
The Respect@Work Report made 55 recommendations; however, the legislation comprises only six of them. Of the 49 recommendations that were not incorporated in the legislation, the most crucial absentee is the duty that all employers must bear to take measures that are both reasonable and proportionate in order to eliminate all forms of sexual harassment, victimisation, and sex discrimination in the workplace.
The current legislation fails to address the fact that the onus is placed on victims to lodge a complaint and then seek damages for any harm they have suffered as a result of sexual harassment, but employers should remain mindful that they have a positive duty requirement to provide safe and healthy workplaces, which includes undertaking harm prevention measures so that these types of behaviours do not occur. Workplaces would be wise to commence or continue taking a proactive assessment of their internal culture and any of the systemic factors in it that may foster, encourage or dismiss claims of sexual harassment and sex discrimination, including power imbalances and gender inequality, such as the underrepresentation of women in leadership positions.
Businesses that actively fail to adopt this recommendation may find they struggle to keep up with the recommendations that have been accepted into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021.
If you are an employer who requires advice on how they should adopt the changes to legislation in their workplace, or you are an employee who has been victimised in the workplace and need help understanding your rights, our experienced workplace lawyers can assist on (07) 4052 0700.