Morrison Government proposes changes to sexual harassment and sex discrimination laws in the workplace

The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth) (Bill) was introduced into the Senate last week. The intent of the legislation is to amend the Fair Work Act 2009 (Cth) (FW Act), the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and Sex Discrimination Act 1984 (Cth) (SD Act) to respond to recommendations arising out of the Respect @ Work Report.

Proposed changes include, but are not limited to:

  1. amending the AHRC Act to extend the President’s ability to terminate a complaint that relates to the SD Act, from a complaint that is lodged more than 6 months after the alleged acts, omissions or practices took place, to a complaint that is lodged more than 24 months since the alleged acts, omissions or practices took place;
  2. the ability of the Fair Work Commission (FWC) to make a stop sexual harassment order if it 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 by the individual or individuals;
  3. clarifying that in the FW Act, a valid reason for dismissal is conduct which includes the person sexually harassing another person and the person doing so in connection with the person’s employment;
  4. extending the 2 days of compassionate leave provided for in the FW Act, if the employee, or the employee’s spouse or de facto partner, has a miscarriage;
  5. a definition of “harassment on the ground of sex” in the SD Act;
  6. clarifying that victimisation can form the basis of a civil action for unlawful discrimination under the SD Act; and
  7. aiding or permitting another person to engage in sexual harassment or harassment on the grounds of sex can also be found to have engaged in unlawful conduct under the SD Act.

Harassment on the ground of sex

In respect of the definition “harassment on the ground of sex”, the proposed definition is as follows:

For the purposes of this Act, a person harasses another person (the person harassed) on the ground of sex if:

  1. by reason of, the sex of the person harassed, or a characteristic that appertains generally to persons of the sex of the person harassed, or a characteristic that is generally imputed to persons of  the sex of the person harassed, the person engages in unwelcome conduct of a seriously demeaning nature in relation to the person harassed; and
  2. the person does so 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 circumstances to be taken into account include, but are not limited to, the following:

  1. the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
  2. the relationship between the person harassed and the person who engaged in the conduct;
  3. any disability of the person harassed;
  4. any power imbalance in the relationship between the person harassed and the person who engaged in the conduct;
  5. the seriousness of the conduct;
  6. whether the conduct has been repeated;
  7. any other relevant circumstance.

In the Explanatory Memorandum, the Government noted that “it is taking action to strengthen, simplify and streamline the legislative and regulatory frameworks that protect workers from sexual harassment and other forms of sex discrimination in the workplace. This Bill would ensure that more workers, particularly vulnerable workers, are protected and empowered to address unlawful conduct. These reforms are essential for advancing both women’s safety and economic security“.

We will keep you updated on the progress of the Bill.

If you would like to discuss this further and the implications for your business please contact our Employment + Workplace Relations Partner, Erin Lynch.

The contents of this publication do not constitute legal advice and are for general information purposes only. You should seek legal advice regarding your particular circumstances.