NEW CHANGES TO ADDRESS SEXUAL HARASSMENT AT WORK

Recent increased awareness about sexual harassment at work and the prominent Respect@Work Report has led the Federal Government to introduce the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Respect@Work Law).   As at 10 September 2021, the Bill was passed in parliament and is now law and attempts to ensure that Australia has a path forward to prevent and address sexual harassment and support meaningful cultural change in our workplaces.  The new law also makes changes to the Fair Work Act 2009, the Sex Discrimination Act 1984 and the Australian Human Rights Commission Act 1986.   So, what are the changes and how do they affect employers?  

CHANGES MADE BY THE NEW LAW 

1 New Changes to the Fair Work Act 2009 (Cth) (FWA) 

There are several changes which have been introduced to the FWA, including:  

• The introduction of ‘stop sexual harassment orders’ at the Fair Work Commission (FWC); and  

• The introduction of miscarriage as an occasion for compassionate leave; and  
• The explicit inclusion that sexually harassing an individual in connection with employment is a valid ground for dismissal  

Firstly, the new law expands the FWC’s anti-bullying powers to include the prevention of sexual harassment. This means that where a worker has been sexually harassed at work, they can apply to the FWC for a ‘stop sexual harassment order’ to apply to their workplace.  Importantly, the law applies to a ‘worker’, not ‘employee’. Therefore, coverage extends to any person that can perform work in any capacity, including contractors, sub-contractors, apprentices, trainees, work experience students and volunteers. This no doubt raises interesting questions about obligations on all workers and is going to prompt employers to consider coverage of their Code of Conduct/Respectful Behaviours policies.   Once the application is made, the FWC can make an order if they are satisfied that: 

• The worker has been sexually harassed at work, and  
• There is a risk that the worker will continue to be sexually harassed at work  

The hurdle requirement of ‘continued’ sexual harassment raises questions as to applicability for workers who may have perhaps been dismissed or are no longer physically in the workplace.   Where the FWC thinks that both conditions do apply, they can make any order they deem appropriate (not including the payment of a financial cost). Any breach of the order becomes a ‘civil remedy provision’. Meaning that if a business is found to be in breach of the order, there is a possible maximum penalty of 60 penalty units ($10, 904.40 as from 1 July 2021). 

When does this commence? 

The introduction of the stop sexual harassment orders apply from 11 November 2021. However, it can apply retrospectively to past instances of sexual harassment in the workplace.   

Other changes under the FWA  

Relevantly, the laws regarding unfair dismissal have also been altered to include that where an employee sexually harasses a person in connection with their employment, it is a valid reason for dismissal.   In other changes, employees are now also entitled to 2 days of compassionate leave where they or their spouse/de facto partner have a miscarriage. 

2 Changes to the Sex Discrimination Act 1984 (Cth) (SDA)  

The first change is to create a standalone ground of discrimination called ‘sex-based harassment’. Sexual harassment was already prohibited under the SDA under the grounds of sex-based discrimination. However, the aim is to reduce confusion by making it an explicit ground in the Act. Practically for employers, there is little substantial difference in responsibility which comes out of this.   However, similar to the FWA, the new law has expanded the application of the SDA to cover ‘workers’ and ‘persons conducting a business or undertaking’. Therefore, the protection from sex-based harassment is now extended to persons such as contractors, interns, volunteers and self-employed workers.   The new change also specifically imposes liability on those who ‘instruct, induce, aid, permit sexual harassment’. This means that where someone is assisting sexual harassment, they will also be liable under the Act.  

3 Changes to the Australian Human Rights Commission Act 1986 (Cth) (AHRC)  

The key changes made to the AHRC are in relation to accessibility to ensure that the complaints process for individuals is streamlined and safeguarded.   Firstly, the new changes clarify that victimisation is unlawful. Victimisation by definition is where someone is threatened or subject to detriment because they have made a complaint, proposed to make a complaint or engaged with the Human Rights Commission in other ways.   It also extends the time period that an individual has to make a complaint to the Commission. Previously, the Commission had the discretion to terminate a complaint if it was 6 months after the alleged conduct. This has now been extended to 24 months.    

WHAT DOES THIS MEAN FOR EMPLOYERS?  

All the new changes reaffirm the need for employers to be vigilant about sexual harassments at work by revisiting current practice and policies and ensuring a safe workplace.   Practically, this may mean that employers need to start reviewing the procedures they have in place at their workplace to ensure that preventing sexual harassment is legally and culturally accounted for. Employers may start by looking at whether they have policies which cover this behaviour and whether those policies are up to date to reflect the new changes in the law, particularly around scope and coverage.   Further, whilst policies are a great place to start, you should also consider:  

• How many of your employees know about their responsibilities and the laws about sexual harassment?  
• When is the last time you facilitated an Appropriate Workplace Behaviour training session?  

• What training/induction programs do you provide to volunteers, contractors, interns? How do they know about their obligations around sexual harassment?  
• How many of my employees know the options available to them if they do face or witness sexual harassment at work?  

This may be an opportunity to ‘pulse check’ your workforce’s awareness to ensure that you’re promoting a safe and positive workplace.  

WHAT NEXT?  

So, where to from here?  

1. Review your current policies and training – take stock of what procedures and processes you currently have for your workplace and when they were last updated.  
2. Assess whether you have any gaps – ask whether you have adequately addressed all legal requirements. 
3. Implement! – it’s also important that you take your staff along with you whilst you implement these changes.  

Sexual harassment is now covered by many areas of law including of workplace health and safety, anti-discrimination, workplace protections and more. We understand the overlapping legislative frameworks can be confusing and overwhelming, so if you need a hand in checking how your workplace is tracking against these or want to assess what steps you may need to take – reach out to us, we’re here to help!  Addressing sexual harassment isn’t just about compliance, it’s about workplace culture. Our team is here to support you to determine what sort of initiatives could make a practical difference in your workplace, and how to make sure your workforce feel included in these changes.