Government Introduces Bill in Response to Landmark AHRC Respect@Work Report
The Federal Government has introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill) in response to the Respect@Work Report (the Report) presented to the Government by the Sex Discrimination Commissioner, Kate Jenkins, in March last year. As part of its ‘Roadmap for Respect’ initiative the Government provided a response to the Report on 8 April 2021. Our summary of the Government response can be found here: Federal Government responds to AHRC Respect@Work Report.
The Bill proposes amendments to the Fair Work Act 2009 (FW Act), the Australian Human Rights Commission Act 1986 (AHRC Act) and the Sex Discrimination Act 1984 (SD Act) and broadly reflects the response of the Government to the Report.
Key amendments arising from the Bill are as follows:
Extension of time to make a sexual harassment complaint.
It is proposed that the AHRC Act be amended to give the President of the AHRC discretion to terminate a complaint that relates to the SD Act more than 24 months after the alleged acts, omissions or practices took place (currently it is 6 months). According to the Explanatory Memorandum to the Bill (EM), this provision has been inserted in response to a recognition that complaints initiated under the SD Act, including for sexual harassment, are sensitive in nature and may be difficult for a person to lodge within six months.
Orders to stop sexual harassment
Part 6 – 4B of the FW Act, which deals with stop bullying orders, will be extended to allow a worker who has been sexually harassed (as defined in section 28A of the SD Act) at work by one or more individuals to apply to the FWC for an order to stop the sexual harassment.
According the EM, this proposed amendment will afford those who have suffered workplace sexual harassment with access to a fast, low cost, informal mechanism to deal with complaints. The proposed amendment gives the FWC the power to make any order it considers appropriate, other than an order requiring payment of a pecuniary amount, to prevent a worker from being sexually harassed at work (provided the FWC is satisfied sexual harassment has occurred and there is a risk the harassment will continue).
According to the Bill, a worker will have been ‘sexually harassed at work’ if, while the worker is at work in a constitutionally‑covered business, one or more individuals sexually harasses the worker. This definition, combined with the adoption of the definition of sexual harassment from the SD Act, makes it clear that an order to stop sexual harassment can be made after just one instance of sexual harassment (as opposed to an order to stop bullying which, although in its current form may deal with sexual harassment, requires repeated unreasonable behaviour and for a worker to establish a risk to health and safety).
The concept of when a worker is ‘at work’ has been considered in the context of the existing anti-bullying jurisdiction and, according to the EM, will continue to apply in respect of orders to stop sexual harassment. That means a worker does not necessarily need to be performing actual work in a workplace to enliven the jurisdiction; it may be sufficient that they are engaged in an activity with a connection to work (such as being present at an offsite work function).
This amendment is retrospective in operation and will apply irrespective of whether a worker has been sexually harassed at work before, at or after the commencement of the section. It also contemplates a worker from making an order stopping both bullying and sexual harassment because, as observed in the EM, sexual harassment and bullying can occur concurrently.
The use of the FWC’s anti-bullying jurisdiction for sexual harassment matters was considered by Michael Byrnes in an article from 2019, which can be found here: Using the Anti-Bullying Jurisdiction of the Fair Work Commission for Sexual Harassment Matters. Some of the potential issues identified in that article, and which have not been resolved by the Bill, include that orders to stop sexual harassment will not be available when the person who harassed the worker is no longer employed at the workplace (as there is no risk that the worker will continue to be sexually harassed) and that, unlike sexual harassment complaints made under the AHRC Act which can progress to a civil court, there is no ability for the FWC to make an order for compensation.
Paid compassionate leave for miscarriages
Compassionate leave in the National Employment Standards has been extended to circumstances where an employee, or the employee’s spouse or de facto partner, has a miscarriage. This follows an announcement from the NSW Government in its budget on 22 June, relating to NSW public sector employees, that it will provide five days of paid bereavement leave where an employee or their spouse has a miscarriage.
Valid reason for dismissal
The Bill has made it clear that whether a person sexually harassed another person in connection with that person’s employment can be a valid reason for dismissal for the purposes of the unfair dismissal régime in the FW Act.
Extension of the operation of the SD Act
The Bill amendments the SD Act to clarify that it extends to all members of parliament, judges, staff and consultants employed under the Members of Parliament (Staff) Act 1984 by including them in the definition of ‘Commonwealth employee’. An exemption for state public servants from the operation of the SD Act has also been removed.
Harassment on the grounds of sex
This proposed amendment provides that, in addition to sexual harassment (which requires conduct to be of a sexual nature), a person can be harassed on the ground of sex if by reason of the sex of a person, or a characteristic that appertains or is imputed to persons of the sex of a person, another person engages in unwelcome conduct of a seriously demeaning nature. The conduct must occur 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.
This new provision reflects the prohibition on sex-based discrimination in the SD Act, and as such it will not only prohibit harassment on the basis of someone’s sex; it will also make it unlawful to harass a person because of a physical characteristic that relates to sex (for example, a woman’s pregnancy) or that society generally imputes to a particular sex (for example, carers responsibilities). The EM makes it clear that although there may be overlap between these three grounds in practice, as the reason for the harassing conduct may be a combination of someone’s sex and characteristics appertaining generally to members of their sex, this does not prevent a claim being made.
Sexual harassment and WHS
The definition of Persons Conducting a Business or Undertaking (PCBU), from the model Work Health and Safety Act 2011, is to be inserted into the SD Act to ensure its prohibition on sexual harassment and harassment on the ground of sex are extended to PCBUs (who have obligations in respect of a broad range of paid and unpaid workers such as interns, volunteers and self-employed workers) as well as employers.
As noted in the EM, the amendments to the SD Act provide greater clarity around when sexual harassment and harassment on the ground of sex is unlawful in the workplace. This includes a prohibition on sexual harassment or harassment on the ground of sex by a PCBU towards a worker or potential worker, and by a worker towards another worker.
A new victimisation provision in the SD Act makes it clear that it is unlawful for a person to commit an act of victimisation against another person, and confirms that a civil application of unlawful discrimination may be made in response to an act of victimisation. This provision will operate alongside the existing criminal offence of victimisation in the SD Act
Liability of third persons
The provision of the SD Act which deals with the liability of persons who ’cause, instruct, induce, aid or permit’ another person to do an act that is unlawful will be amended to ensure it applies to sexual harassment and harassment on the grounds of sex. An example provided by the EM is if a manager encourages one of their junior staff to sexually harass another staff member, the manager may be held liable as an accessory to the harassment.
The Bill has been referred to the Senate Education and Employment Legislation Committee which will report on 6 August 20021. We will keep a close eye on the Bill’s progress and provide an update with any developments.