Sex Discrimination and [email protected] Amendments

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By Samantha Maddern, Partner, Elizabeth Moran, Special Counsel and Kathryn Hunter, Associate 

On 2 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 passed both houses of parliament, implementing certain elements of the Australian Human Rights Commission’s Report, [email protected]. The changes are aimed at strengthening, simplifying and streamlining existing legislative frameworks to protect workers from sexual harassment and other forms of sex discrimination in the workplace.  Prudent employers should now review and, where necessary, revise their policies and training content.

The Bill, which will commence operation once it receives royal assent, amends the Fair Work Act 2009 (Cth), the Sex Discrimination Act 1984 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).

The key changes, and their impact on workers and employers, are summarised below.

Fair Work Act 2009

  • ‘Stop Orders’ for sexual harassment – The amendments introduce a new mechanism for the Fair Work Commission (FWC) to deal with complaints related to sexual harassment within the existing anti-bullying jurisdiction, including by issuing “stop orders” to prevent further sexual harassment.
  • This creates a new pathway for workers to seek redress for sexual harassment, and a new mechanism by which the FWC can make orders that directly affect workplace operations and which require enforcement by the employer. A “worker” for these purposes is broadly defined and covers not only employees, but contractors, subcontractors, outworkers, apprentices, trainees, work experience students and volunteers.
  • As with the current anti-bullying regime, the FWC must be satisfied that sexual harassment has occurred and there is a risk that the worker will continue to be sexually harassed at work. There will be no future risk where either the victim or the perpetrator is no longer in the workplace. There is no capacity for financial compensation to be ordered. However, unlike the existing anti-bullying regime, which requires the conduct to be repeated or recurring, the FWC will be able to deal with a complaint that arises out of a single instance of sexual harassment. This is consistent with the definition of sexual harassment in the Sex Discrimination Act 1984.
  • Sexual harassment is a valid reason for dismissal – In line with recent changes to the Fair Work Regulations 2009 (Cth) which expanded the definition of ‘serious misconduct’ to include sexual harassment, the amendments will insert a note making it clear that sexual harassment can constitute a valid reason for dismissal. While this is not a change to the law, this amendment makes it clear employers may take disciplinary action in response to workplace sexual harassment.
  • The note also stipulates that, in order for the sexual harassment to be a valid reason for dismissal, it must be in connection with the person’s employment, which is consistent with existing considerations under the unfair dismissal regime. Further, the amendments will not change how the FWC continues to exercise its discretion in determining whether a dismissal is unfair; consideration will still have to be given to whether the dismissal was harsh, unjust or unreasonable in the circumstances. This will include consideration of all the usual procedural fairness requirements, such as an opportunity to respond. An adequate, fair investigation of allegations of sexual harassment will continue to be an essential element in defending unfair dismissal claims, as former employees will no doubt continue to challenge dismissals for sexual harassment by claiming that no such behaviour occurred, and/or it was consensual.
  • Miscarriage leave – Employees will now be entitled to an additional two days’ paid compassionate leave (unpaid for casuals) if they have, or their spouse or de facto partner has, a miscarriage. This important change allows employees time to deal with the trauma and loss associated with miscarriage, and can be used to provide support in conjunction with existing services, including access to EAP.

Sex Discrimination Act 1984

  • Expanded Scope – The scope of the SD Act has been significantly broadened to expressly protect all paid and unpaid workers from sexual discrimination and sexual harassment (again, using the expanded definition of ‘worker’ under the Work Health and Safety Act 2011). As such, the SD Act will now apply not only to employees (including trainees and apprentices), contractors, partners and commission agents, but also to volunteers, work experience students and interns in connection with the workplace. This is perhaps one of the most significant changes, and widens employers’ current obligations under the SD Act.
  • Prohibition on ‘sex based harassment’ – The amendments expressly prohibit ‘sex-based harassment’, which is a different concept from ‘sexual harassment’, and impose separate, additional obligations on employers.
  • ‘Sex-based harassment’ is defined as unwelcome conduct of a seriously demeaning nature that involves the sex of the person or characteristics associated with the sex of that person, that offends, humiliates or intimidates. The impugned behaviour does not need to be sexual in nature (unlike sexual harassment). Much behaviour that will be captured by this definition is what would be regarded as ‘sexist’ or misandrist, rather than ‘sexual’. The threshold requires that the behaviour is sufficiently serious to be captured as unlawful conduct, and may include:
    • 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.
  • In practice, employers who receive complaints of bad behaviour, however expressed, will need to consider ‘sex-based harassment’ alongside other potential contraventions, such as bullying or violations of codes of conduct. If the behaviour is not sexual (and therefore cannot be sexual harassment), and is not repeated (and therefore cannot be bullying), it may nevertheless be ‘sex-based harassment’.
  • Unlike all other changes being introduced through the Bill, these changes will come into effect two months after the Bill receives royal assent to provide the FWC the opportunity to adjust and implement processes to deal with these matters.
  • Victimisation – The amendments clarify that victimisation (for example, where someone has made a complaint under the SD Act and is subsequently threatened or subjected to detriment) can form the basis of a civil action. This is in addition to the existing criminal offences under the SD Act.
  • Complaints to the AHRC – Under the existing provisions, the President of the Australian Human Rights Commission may exercise their discretion to terminate a complaint where the alleged unlawful conduct (such as sexual discrimination or sexual harassment) took place more than 6 months prior to the making of the complaint (noting that there is no timeframe for complaints to be lodged to the AHRC, only that there is a discretion to terminate complaints made after this time on the ground of delay). This discretionary timeframe has now been extended to 24 months from the date of the alleged conduct, in acknowledgement of the complex and sensitive nature of complaints, including sexual harassment. This means that complainants are not at any risk of having their complaints terminated on the grounds of delay until at least 24 months have passed since the (latest) act of discrimination or harassment. Consistent with the existing provisions, the President can still consider complaints made at any time.
  • Accessorial liability – Accessorial liability provisions have been introduced to apply to the conduct of a person who causes, instructs, induces, aides, or permits sexual or sex-based harassment by another, such that that person will also be deemed to have engaged in the same conduct. This is an important provision for managers to bear in mind, as personal liability can result from ‘turning a blind eye’ to sexual harassment or to sex-based harassment, as is already the case with regard to ‘adverse action’ in employment under the FW Act.

What does this mean for employers?

As highlighted in the initial [email protected] Report, sexual harassment is unfortunately a prevalent feature in too many workplaces. While the amendments do not go so far as to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate sexual harassment, discrimination and victimisation (as was recommended in the Report), the risks to workers must be carefully and appropriately managed.

  1. Review your workplace culture – Is there a culture that enables sexual harassment or sex-based harassment to occur? Do workers feel comfortable to make a complaint and do they feel supported when they are victims to, or a witness to, harassment? Is there a separate, ‘rogue’ culture at a particular location (e.g. on a remote site) that deviates from the standards of behaviour seen elsewhere in the organisation?
  2. Review policies and procedures for dealing with sexual harassment – Do the current policies adequately provide for dealing with instances of sexual harassment? Do the policies need to be updated to incorporate ‘sex-based harassment’, and to explain the difference from ‘sexual harassment’? Are there appropriate support mechanisms in place for victims of harassment?
  3. Provide appropriate training and education – Do all workers understand what is, and what is not, appropriate behaviour in the workplace? Are they also aware of what action they can take in reporting inappropriate behaviour? Is it time to roll out training or refresher training sessions? Training on the concept of ‘sex-based harassment’ may need to be incorporated into existing ‘sexual harassment’ training.
  4. Review leave policies – Do existing leave policies need updating to make clear employees’ entitlement to compassionate leave for miscarriage? Do HR systems need updating to allow for this leave?

If we can provide any further information in relation to the proposed changes, or you have any queries, please contact us.

For further information, please do not hesitate to contact us.

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