Former Australian of the Year, Grace Tame and former political staffer, Brittany Higgins have been instrumental in bringing the issue of sexual harassment to the forefront of our conversations.

Higgins and Tame spoke at the National Press Club earlier this year and emphasised the need for action rather than words from politicians when it comes to preventing sexual assault and abuse.

In September last year, the Federal Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, which brings into law some of the recommendations from the [email protected] Report.

The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (the Act) came into effect on 10 September 2021, and is intended to strengthen and simplify national laws to better protect Australians against sexual harassment and promote equal treatment of women and men in the workplace.

Whilst a step in the right direction, the recommendations from the [email protected] Report don’t appear to have been designed for cherry picking into legislation, and for full impact would need to be implemented in full.

Background

Whilst previously a taboo or ‘swept under the rug’ topic, sexual harassment has rightly attracted widespread media coverage following the 2017 exposure of sexual-abuse allegations against Hollywood film producer, Harvey Weinstein.

This includes the #MeToo movement on social media, which a prominent American actress commenced, seeking to give people a sense of the magnitude of the problem. What eventuated was a global discussion of sexual harassment which included the prevalence of this behaviour, and ways to empower women and promote equality.

In Australia, similar traction most recently followed when former Liberal staffer, Brittany Higgins spoke out about her alleged rape in Parliament, which triggered rallies across Australia to take a stand against gendered violence

This came not long after the Sex Discrimination Commissioner Kate Jenkins delivered the [email protected]: Sexual Harassment National Inquiry Report (2020), which proposed 55 recommendations, constituting a new approach for government, employers and the community to better prevent and respond to sexual harassment in the workplace.

The Act implements some of the Report’s recommendations and amends Commonwealth legislation, with the aim of reducing the prevalence of sexual harassment and ensuring that every Australian feels safe at work.

Summary of Changes

Fair Work Act 2009 (Cth) (FW Act)

From 11 November 2021, the FW Act provides employees the power to ask the Fair Work Commission to make orders when they have been subjected to sexual harassment at work. Whilst employees will be able to make historical claims, like the anti-bullying jurisdiction, employees will still need to demonstrate that there is a risk that the sexual harassment will continue at work if the Commission is to intervene.

The unfair dismissal provisions in the FW Act have been amended to specifically note that sexual harassment can be a valid reason for dismissal. Whilst sexual harassment has historically been a valid reason for dismissal, this will be the first specific valid reason for dismissal formally noted in the FW Act, and also reflects a recent amendment to the Fair Work Regulations 2009 (Cth) to expand the definition of ‘serious misconduct’ to specifically include sexual harassment.

Employees will also be entitled to an additional two days’ paid compassionate leave (or unpaid leave for casuals) if they have, or their spouse or de facto partner has had, a miscarriage before a period of gestation of 20 weeks.

Sex Discrimination Act 1984 (Cth) (SDA)

The following amendments have been made to the SDA:

  • The object of the SDA will be amended to clarify it aims to achieve, so far as practicable, equality of opportunity between men and women;
  • Amendments to provide clarity that harassing a person on the basis of sex is unlawful;
  • Amendments to protect additional categories of workers from sexual harassment, including members of Federal Parliament, Judges (and their staff), and vulnerable workers;
  • Amendments to clarify unlawful victimisation (for example, being dismissed in response to making a sexual harassment complaint) can be both a civil and criminal matter;
  • Amendments to allow employees 24 months (as opposed to 6 months previously) to lodge a sexual harassment complaint with the Australian Human Rights Commission; and
  • Amendments to introduce accessorial liability provisions which will apply to the conduct of a person who causes, instructs, induces, aides or permits sexual or sex-based harassment by another.

Key Takeaways

Whilst the Act brings upon some significant changes, they are unlikely to have any material impact upon workplaces, who already owe a duty of care to staff and can be held vicariously liable for unlawful sexual harassment. Furthermore, the Fair Work Commission’s new power to stop sexual harassment is unlikely to lead to extensive claims given the Commission lacks power to award compensation for these types of matters.

Practically, workplaces should turn their minds to the following:

Ensure there is a comprehensive bullying, discrimination and sexual harassment policy implemented which clearly states that such behaviour is unacceptable and unlawful;

  • Arrange ongoing training sessions for staff to identify unacceptable and unlawful behaviours and understand what to do if they are subjected to it, or witnesses to it;
  • Ensure there is a respectful culture where staff act as upstanders rather than bystanders; and
  • Ensure there are processes in place to allow decisive action when staff raise concerns.