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Update on sexual harassment legislation

Recent legislative changes implement a number of recommendations from the ‘Respect@Work: Sexual Harassment National Inquiry Report’ (2020) (the Respect@Work Report).

The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (the Act) was passed on 2 September 2021 and adopts six of the 55 recommendations contained in that report. The Act came into force on 11 September 2021.

In essence, the Act enables employees to apply to the Fair Work Commission (the FWC) for orders to stop sexual harassment and expands the coverage of the Sex Discrimination Act 1984 (Cth) (the SD Act). The Act reinforces that workplace sexual harassment is an extremely serious issue.

Fair Work Act amendments

The Fair Work Act 2009 (Cth) (the FW Act) has been amended to extend the existing anti-bullying jurisdiction of the FWC to also apply to sexual harassment. The FWC will be able to make orders to stop bullying and/or sexual harassment where a worker is either bullied or sexually harassed at work.

The FW Act now incorporates the definition of ‘sexually harass’ from s28 of the SD Act which provides that a person sexually harasses another person if:

  • they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed, or
  • they engage in other unwelcome conduct of a sexual nature in relation to the person harassed

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

The provision covers workers in constitutionally covered businesses and does not cover workers performing work for a sole trader or partnership, wholly volunteer organisations and some state government departments and agencies, local governments and corporations without significant trading or financial activities. However, these workers may be able to apply to the Queensland Industrial Relations Commission for similar relief.

Unlike the requirements for anti-bullying orders, only one instance of conduct is needed to amount to sexual harassment and the worker is not required to establish a risk to health and safety.

The current case law on what constitutes being ‘at work’ will be relevant to sexual harassment matters which includes both the performance of work and when the worker is engaged in some other activity authorised or permitted by their employer.

If the FWC is satisfied that the worker has been sexually harassed at work by one or more individuals, and the FWC is satisfied that there is a risk that the worker will continue to be sexually harassed at work, then the FWC is empowered to make any order it considers appropriate to prevent a worker being sexually harassed at work (s789FF of the FW Act).

Orders would not be available where there is no risk of harassment occurring again, for instance where the harasser is no longer employed at the workplace. The FWC is not able to make an order for a monetary payment under this provision.

The Explanatory Memorandum to the Act (the EM) makes it clear that sexual harassment and bullying are not necessarily mutually exclusive behaviours but can occur together and these amendments enable the FWC to make more effective orders to deal with both behaviours (clause 49 of the EM). The FWC jurisdiction continues to be a practical mechanism to stop bullying and/or sexual harassment from continuing.

Applications to the FWC for orders to stop sexual harassment will be able to be made from 11 November 2021. This will give the FWC time to update its processes and procedures and publish a benchbook on this topic. The FWC can take into account conduct occurring before the commencement of the amendments, however it can only make orders if satisfied there is a risk of future harm.

The Act also contains clarification that sexual harassment can be a valid ground for dismissal. A legislative note has been added to s387 of the FW Act which sets out factors the FWC must take into account when considering whether a dismissal was harsh, unjust or unreasonable. The note informs readers that conduct amounting to a valid reason for dismissal includes where an employee sexually harasses another person in connection with their employment.

The FW Act has also been amended to include an entitlement for employees and their partners (including casual employees) to take compassionate leave in the event of a miscarriage.

Sex Discrimination Act amendments

A new object has been inserted into the SD Act “to achieve, so far as practicable, equality of opportunity between men and women”. The EM (clause 59) notes that this will ensure that the concept of equality of opportunity between men and women, in addition to the elimination of discrimination, underpins the operation of the SD Act.

The object of eliminating discrimination involving harassment on the ground of sex has also been added to the SD Act alongside the elimination of discrimination involving sexual harassment (s3(c) of the SD Act).

The Act clarifies that the SD Act extends to all members of parliament, members of the ACT and Northern Territory legislative assemblies and their staff, federal judges (including High Court judges), staff and consultants employed under the Members of Parliament (Staff) Act 1984. State public servants and contractors (including state judges and magistrates) are also now clearly subject to the SD Act.

The SD Act has been amended to include definitions of ‘worker’ and ‘persons conducting a business or undertaking’ (PCBU) from the Work Health and Safety Act 2011 (Cth). The intention is for the SD Act to capture the full range of people who carry out work in any capacity for a PCBU including volunteers, interns and self-employed people.

The Act also clarifies that victimising conduct can form the basis of both a civil action for unlawful discrimination and a criminal complaint. Accessorial liability is also introduced to the SD Act for any person who “causes, instructs, induces, aids or permits sexual harassment and sex-based harassment”.

Harassment on the ground of sex is now an express form of unlawful conduct under the SD Act. The amendments are intended to capture harassing conduct that is seriously demeaning, but not necessarily sexual (and thus amounting to sexual harassment). The EM (clause 158) notes that harassing conduct on the ground of sex would need to be sufficiently serious or sustained to meet the threshold of offensive, humiliating, or intimidating, as well as seriously demeaning. The following examples are cited in the EM:

  • asking intrusive personal questions based on a person’s sex
  • making inappropriate comments and jokes to a person based on their sex
  • displaying images or materials that are sexist, misogynistic or misandrist
  • making sexist, misogynistic or misandrist remarks about a specific person, and
  • requesting a person to engage in degrading conduct based on their sex.

The EM notes that it is not intended to catch mild forms of inappropriate conduct based on a person’s sex that are sufficiently serious to meet the required threshold.

The time for lodging complaints with the Australian Human Rights Commission relating to sex discrimination has been increased from six months to 24 months in recognition of the sensitive nature of these complaints.

All practitioners and staff should take note of these changes and take steps to ensure that firm cultures reflect modern societal expectations.

Rob Stevenson is the Principal of Australian Workplace Lawyers and a QLS Senior Counsellor. rob.stevenson@workplace-lawyers.com.au

Queensland Law Society provides resources and training on workplace conduct. The next ‘Sexual Harassment: Changing workplace culture’ face-to-face events will be held on 28 October and 16 November, with a livestream event on 30 November.

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