The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth) became law on 2 September 2021. It was created in response to the Australian Human Rights Commission’s (AHRC) Respect@Work Report (2020 report). The new Act implements six of the 2020 report’s 55 recommendations and its purpose is “to achieve, so far as is practicable, equality of opportunity between men and women”.
Now the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth), it amends the Sex Discrimination Act 1984 (Cth), Australian Human Rights Commission Act 1986 (Cth) and the Fair Work Act 2009 (Cth).
Prior to the amendments being passed, the Fair Work Amendment (Respect at Work) Regulations 2021 came into effect on 10 July 2021, adding “sexual harassment” to the definition of “serious misconduct” in the Fair Work Regulations 2009 (Cth).
It was expected that the law would be passed sometime this year, so it should come as no surprise to employers in this regard. All workplace policies should be reviewed in the light of the amendments. If no workplace policy exists, it is incumbent on employers to put relevant policies in place as soon as possible. This would include employees’ codes of conduct, sexual harassment policies and gender equality policy. All staff should be made aware of their responsibilities and the procedures in place to report and respond to sexual harassment.
Stop sexual harassment orders
The main change in the Fair Work Act 2009 (Cth) is the ability to obtain a stop order under the bullying regime which includes sexual harassment. Similar to bullying orders, these new provisions require a risk to health or safety to be established. Sexual harassment is also now included as a valid reason for dismissal under the unfair dismissal laws, amending s 387 of the Fair Work Act 2009 (Cth).
Also in line with creating a fair workplace, employees who have experienced a miscarriage, or their partner will be entitled to two days paid compassionate leave (unpaid leave for casuals), amending ss 104-105 of the Fair Work Act 2009 (Cth).
It is the changes to the Sex Discrimination Act 1984 (Cth) that will have the most impact on the public sector as it lifts the exemption which used to apply to state public servants. The amendments also extend coverage to judges, members of parliament and their staff at all government levels, and more broadly to all paid and unpaid workers, including interns, volunteers and the self-employed.
The new provisions also include an amendment to the Australian Human Rights Commission Act 1986 (Cth). This extends the period for a complaint under the Sex Discrimination Act 1984 (Cth) brought to the AHRC from six months to 24 months.
As an employer, what are your policies?
Dr Victoria Lambropoulos, co-author and editor of Westlaw’s leading annotated text of the Fair Work Act 2009 (Cth), published by Thomson Reuters, warns legal advisers and in-house employment teams to prepare now for the impact this change has on everyone in their business.
Focusing on the practical steps that should be in place, Victoria emphasises the need for employers to audit and review their policies and procedures relating to workplace behaviour.
“The priority now is to identify gaps and/or inconsistencies and rectify them to ensure policies meet the new statutory obligations.
“It is not enough to have policies in place. Organisations must ensure that staff are regularly trained in implementing them or they cannot be used as a defence to a claim that that they did not take ‘reasonable precautions’ in any sexual harassment claim made against the organisation.
“Further, changing policy is one thing but regulating workplace culture is quite different. This requires effective training of senior employees and managers in particular, as often they set the tone in relation to the culture which exists in most workplaces.”