In a recent article we commented on the extent to which the #MeToo movement was continuing to change the workplace environment.

This month Prime Minister Scott Morrison announced that the Coalition Government has agreed to or otherwise noted all of the recommendations set out in Sex Discrimination Commissioner Kate Jenkins’ report on sex discrimination in Australian workplaces (Respect@Work Report).

The ‘Respect@Work’ Report provides 55 recommendations for addressing sexual harassment in the workplace. The Prime Minister confirmed that each of the recommendations, including recommendations affecting Commonwealth, State, and Local laws will be adopted either “wholly, in part or in principle” by the Coalition Government.

Importantly for employers, the Report makes various recommendations for amendments to the laws governing workplaces, specifically amendments to the Fair Work Act 2009 (Cth) (FWA)the Sex Discrimination Act 1984 (Cth) (SDA) and the model Work Health and Safety Act 2011 (Cth) (WHSA)

It is likely that if the WHSA is amended, similar amendments will be introduced into Victoria, which does not have the model WHSA.

key legislative amendments

Key legislative changes adopted or noted by the Government include:

  • amending the SDA and related legislation to ensure that:
    • sex-based workplace harassment is expressly prohibited;
    • there is greater alignment between the SDA and model workplace health and safety laws;
    • employers have a positive duty to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible within the workplace;
    • the time to make an alleged unlawful discrimination claim is extended to 24 months after the alleged incident occurred;
  • amending the FWA and its associated regulations so that:
    • a ‘stop sexual harassment order’, equivalent to a ‘stop bullying order’ is introduced in the context of workplace sexual harassment;
    • the definition of ‘serious misconduct’, for the purposes of termination without notice, is amended to include an express reference to sexual harassment;
    • sexual harassment is expressly listed as a valid reason for dismissal for the purposes of an unfair dismissal application;
    • the Fair Work Information Statement includes additional guidance on sexual harassment (subject to agreement by the Fair Work Ombudsman);
  • amending the WHSA and its associated instruments so that:
    • the Regulations deal specifically with psychological health;
    • a code of practice on managing psychological risks will be introduced which covers sexual harassment in the workplace.

The national guidance material “Preventing Workplace Sexual Harassment” already released by SafeWork Australia implements the Report’s recommendations to develop such guidelines.

historical workplace sexual harassment

The Government has also noted its support for the recommendation that a disclosure process be established for victims of historical workplace sexual harassment.

In doing so, the Government has made a commitment to providing employers with guidance materials on the provision of support to victims of historical workplace sexual harassment.

next steps for employers

The Coalition Government’s response to the Respect@Work Report heralds one of the biggest changes to discrimination and work, health and safety laws in Australia in recent history.

In addition, some peak union bodies and State governments are foreshadowing even more extensive changes to State industrial relations and workplace health and safety legislation.

There are a number of steps employers can take now to prepare for the implementation of these changes, including:

  • reviewing existing policies and procedures;
  • implementing education and training programs for all workers in relation to identifying, responding to and reporting instances of sex discrimination or sexual harassment in the workplace; and
  • developing processes and procedures for dealing with reports of historical workplace sexual harassment and providing appropriate support to victims.