In the wake of a spate of high profile sexual assault and harassment allegations in recent weeks, the federal government has announced it will implement a suite of anti-harassment reforms in response to the Sex Discrimination Commissioner’s landmark [email protected] national inquiry report, which was released in March 2020.
The [email protected] inquiry found that Australia’s current legal and regulatory system for addressing workplace sexual harassment is “complex and confusing” for workers and employers. For example, the report highlighted that the complaints mechanisms for reporting sexual harassment are widely considered difficult to navigate. Last week the federal government published its long-awaited response to the Commissioner’s report. In agreeing (in full, in part or in principle) or noting the Commissioner’s 55 recommendations, the government has confirmed it will introduce legislative amendments designed to simplify and strengthen the national legal framework for combating sexual harassment at work (though the definition of harassment itself remains unchanged).
The proposed changes include:
- amending the Sex Discrimination Act 1984 (Cth) to expressly prohibit sex-based harassment, ensure greater alignment with model work health and safety laws, and ensure that section 105 of the Act, which relates to accessorial liability of persons involved in unlawful acts applies to those who aid or permit those acts;
- clarifying in the Fair Work Act 2009 (Cth) that sexual harassment can be a valid reason for dismissal. While this change does not alter an employer’s existing rights (sexual harassment has always constituted a potentially valid reason for termination), its explicit inclusion in the Act is expected to up the stakes for employers by making it clear that they should be considering termination as an acceptable response in appropriate cases;
- including sexual harassment within the definition in the Fair Work Regulations 2009 (Cth) of “serious misconduct” warranting dismissal without notice; and
- confirming that a ‘stop bullying order’ under the Fair Work Act is available to workers “in the context of sexual harassment”. The government declined to adopt in full the Commissioner’s recommendation to introduce into the Fair Work system a separate ‘stop sexual harassment order’.
Although not recommended in the [email protected] report, the government also confirmed it will introduce changes to extend the scope of the Sex Discrimination Act to judges and members of parliament.
The government stopped short of accepting in full the Commissioner’s recommendation to introduce into the Sex Discrimination Act a positive duty on employers to take reasonable measures to eliminate sex discrimination and sexual harassment. The government noted that a positive duty already exists on employers to ensure so far as reasonably practicable that workers are not exposed to health and safety risks. The government has however confirmed it will “assess whether such amendments would create further complexity, uncertainty or duplication in the overarching legal framework”.
The government is aiming to introduce its proposed legislation into parliament by June 2021.