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Snapshot

  • The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 represents the Government’s response to the [email protected] Report, which was the product of an 18-month inquiry and recommended 55 areas for law reform to address sexual harassment.
  • In examining some of the key legislative changes, the aims and effectiveness of the reforms are assessed.
  • The failure to include a positive duty on employers to prevent sexual harassment is a missed opportunity to enact meaningful reform aimed at prevention.

The scourge of sexual harassment in Australian workplaces has featured prominently in political discourse throughout 2020 and 2021. At the same time, the case for legislative reform aimed at addressing the prevalence of sexual harassment at work has been gaining momentum. In 2020, Kate Jenkins, the Sex Discrimination Commissioner, oversaw the National Inquiry into Sexual Harassment in Australian Workplaces, the findings of which were published in the [email protected] Report. The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (‘Respect at Work Act) represents the Government’s response to the [email protected] Report.

The blueprint for reform

The [email protected] Report found Australia’s legal and regulatory systems were no longer ‘fit for purpose’ in tackling sexual harassment and made 55 recommendations for reform, including legislative amendments to simplify legal frameworks, improve access to justice, and facilitate prevention. The Respect at Work Act gives effect to only six of the 55 recommendations.

Key changes to the Fair Work Act 2009 (Cth)

Stop sexual harassment orders

Part 6-4B of the Fair Work Act 2009 (Cth) (‘FW Act’) allows a worker who reasonably believes they have been bullied at work to apply to the Fair Work Commission (‘FWC’) for stop bullying orders (‘Bullying Provisions’).The Respect at Work Act expands the Bullying Provisions to enable the FWC to make ‘stop sexual harassment orders’. The [email protected] Report recommended the expansion of the FWC’s powers to make a ‘stop sexual harassment order’, primarily to provide complainants with less adversarial options to seek redress, and with a mechanism for early intervention, given the FWC is obliged to action complaints under s 789 within 14 days of lodgement.

From 11 November 2021, an employee who reasonably believes they have been sexually harassed can apply to the FWC for orders that the sexual harassment stop. The new section provides that a worker is sexually harassed if, ‘while the worker is at work in a constitutionally-covered business, one or more individuals sexually harass the worker’.

Relevantly, the provision requires the sexual harassment to have occurred ‘at work’. The FWC has generally taken a narrow view as to whether conduct is work-related (Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156). This is compared to the broader view taken by the Federal Court as to whether conduct has taken place ‘in connection with employment’ when interpreting vicarious liability provisions for sexual harassment. This is significant, given harassment often occurs at events outside the workplace, or via social media. This could produce conflicting approaches between the jurisdictions.

Further, while this amendment is aimed at prevention and early intervention, its effectiveness will be limited if remaining in the workplace with the alleged perpetrator, albeit with preventative orders in place, is not a viable or safe solution. As very few stop bullying orders have been made over the life of the Bullying Provisions, whether this amendment will actually improve access to justice remains to be seen.

Sexually harassing an employee: valid reason for dismissal

The Respect at Work Act amends s 387 of the FW Act to include a ‘note’ which expressly states that sexually harassing a person in connection with their employment is a valid reason for dismissal. While sexual harassment would ordinarily be viewed as a valid reason for dismissal, which calls into question the necessity of this amendment, it is nevertheless intended to provide certainty and greater confidence to employers to discipline employees found to have engaged in sexual harassment.

Key changes to the Sex Discrimination Act 1984 (Cth) and Human Rights Commission Act 1986 (Cth)

Harassment on the ground of sex

Distinct from ‘sexual harassment’, the Respect at Work Act introduces amendments to make it unlawful for a person to harass another person on the ‘ground of sex’. Pursuant to the amendment, harassment on the ground of sex takes place where ‘a person engages in unwelcome conduct of a seriously demeaning nature in relation to the person harassed’ and that conduct takes place 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 intimated’.

Recommendation 16 of the [email protected] Report recommended that the Sex Discrimination Act 1984 (Cth) (‘Sex Discrimination Act) be amended to expressly prohibit conduct that, although may not meet the threshold of sexual harassment, nevertheless creates a hostile working environment for workers of a particular sex. The explanatory memorandum makes it clear that this amendment is aimed at prohibiting hostile conduct that is not necessarily sexual in nature, citing the example of where a male manager calls a female worker a bad mother for remaining in the workforce.

Victimisation

The Respect at Work Act also clarifies that the Federal Court of Australia has jurisdiction to determine civil victimisation claims. Prior to the enactment of the Respect at Work Act, the decisions in Walker v Cormack (2011) 196 FCR 574, Walker v State of Victoria [2012] FCAFC 38 and Chen v Monash University [2016] FCAFC 66, cast significant doubt over whether the Court did in fact have jurisdiction to hear a civil claim of victimisation under the existing s 94 of the Sex Discrimination Act. The amendment creates a new section which prohibits victimising conduct, thereby resolving the uncertainty and making it clear that victimisation is actionable in a civil context.

Expanding coverage

Importantly, the Respect at Work Act expands the coverage of the Sex Discrimination Act to people performing work who are not in a traditional employment relationship.

Although the Sex Discrimination Act prohibits sexual harassment in cases involving ‘workplace participants’, which include commission agents, contract workers and partners in a partnership, the Respect at Work Act further expands the coverage of these provisions. By adopting the language used in work health and safety legislation, the amended provisions make it unlawful for a ‘worker’ in a business or undertaking to sexually harass other persons who are workers, or who are persons conducting a business or undertaking. The purpose of these amendments is to expand the reach of s 28B of the Sex Discrimination Act to prohibit sexual harassment in a larger range of scenarios, including in situations involving volunteers, self-employed individuals and other unpaid workers.

Further, the Respect at Work Act expands the coverage of the provisions prohibiting sexual harassment by redefining the meaning of ‘commonwealth employee’ to include members of parliament, their staff and judges, who were previously exempt. The amendments also extend coverage to public servants employed by the State governments, by amending the definition of ‘employment’ to include someone who performs work as a ‘state employee’. Expanding coverage to state public servants is particularly significant for victims of sexual harassment in NSW, as the equivalent State legislation has a statutory cap on the quantum of compensation that is recoverable.

Time frame for lodging complaints

The Respect at Work Act increases the time period which a complainant has to make a complaint to the Australian Human Rights Commission (‘AHRC’) about an alleged breach of the Sex Discrimination Act. Prior to the amendment, the President of the AHRC had the discretion to choose not to investigate a complaint where the complaint had been made more than six months after the alleged conduct. That time period has now been increased to 24 months.

This change was recommended by the [email protected] Report primarily because of the complex reasons why there is often a significant delay in complainants bringing a complaint about workplace sexual harassment. This amendment is an important step towards improving access to justice for complainants.

What’s missing?

A key recommendation of the [email protected] Report that does not feature in the legislation is the introduction of a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation in their workplaces as far as possible. It was recommended that a similar obligation to that contained in the Equal Opportunity Act 2010 (VIC) be adopted at the federal level. Importantly, it was also recommended that the AHRC be given broader investigative powers to assess compliance with the positive duty and take steps to enforce it.

A positive duty would require a proactive and continuous examination of the cultural and systemic factors within workplaces that foster sexual harassment, such as gender inequality, power imbalances, and the underrepresentation of women in leadership. Amendments seeking to include the positive duty in the new legislation were moved by the Federal Opposition during Parliament’s debate of the Bill, but were rejected by the Government.

Conclusion

The legislative amendments are welcome reforms. The changes to the FW Act expand the remedies available to victims of sexual harassment, but are likely to bring the diverging interpretations of work-related conduct to the fore. Further, the failure to introduce a positive duty in the Sex Discrimination Act is a missed opportunity given it was widely considered to be one of the most important recommendations in the Report, and would emphasise preventative, rather than reactionary responses to workplace sexual harassment.


Mia Pantechis is a principal lawyer and Penny Parker is a lawyer, both at Maurice Blackburn Lawyers.