The key changes – what organisations need to know

The Government has today, along with other changes, adopted 6 of the 55 AHRC's recommendations by passing the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect@Work Act). The Government has also committed to progressing a number of remaining recommendations of the Respect@Work Report in line with the Government's Roadmap for Respect.

Here's what you need to know about the key legislative changes just passed:

Sex Discrimination Act 1984 (Cth) and Australian Human Rights Commission Act 1986 (Cth)

• Equality of opportunity – there is a new object in the Sex Discrimination Act to make it clear that, along with the elimination of discrimination and harassment, this Act aims 'to achieve, so far as practicable, equality of opportunity between men and women'. This is designed to guide workers, workplaces, the community and courts on the Sex Discrimination Act's underlying purpose. The Government's response did not include the AHRC's recommendation for the less qualified aim of achieving 'substantive equality'.

• Sex based harassment now an express, new form of unlawful conduct – this conduct may have been captured under the existing prohibitions on sexual harassment or unlawful discrimination but not always. Harassing conduct on the ground of sex will need to be sufficiently serious or sustained to meet the threshold of offensive, humiliating, or intimidating, as well as seriously demeaning. As set out in the Explanatory Memorandum, depending on the circumstances, this may include:

• Asking intrusive personal questions based on a person’s sex
• Making inappropriate comments and jokes to a person based on their sex
• Displaying images or materials that are sexist, misogynistic or misandrist
• Making sexist, misogynistic or misandrist remarks about a specific person
• Requesting a person to engage in degrading conduct based on their sex

• All paid and unpaid workers now expressly protected from sex based and sexual harassment – the scope of the Sex Discrimination Act has been broadened by adopting the concepts of ‘worker’ and ‘person conducting a business or undertaking’ from the model Work Health and Safety Act 2011 (model WHS Act). These changes are designed to reduce complexity for workers and businesses in navigating protections and obligations. It means that interns, apprentices, volunteers, and those who are self-employed are now protected.

• Victimising conduct can give rise to civil and criminal proceedings – this change clarifies that a person who is threatened or subjected to detriment (eg because they make a complaint to the AHRC) can make a civil claim under the Sex Discrimination Act. The Australian Federal Police can still respond to particularly egregious victimisation through criminal proceedings as well.

• AHRC discretion to terminate complaint extended from six to 24 months – although there is no timeframe for complaints to be lodged with the AHRC, the AHRC President's discretion to terminate a complaint has now been extended from six to 24 months. This responds to the AHRC's findings that there are complex reasons why a victim may delay making a sexual harassment complaint. The President will still maintain their discretion to consider a complaint beyond 24 months.

• Ancillary or accessorial liability – the Sex Discrimination Act deems the conduct of a person who ‘causes, instructs, induces, aids or permits’ another person to do an unlawful act of discrimination to have engaged in that same conduct. This is now extended to sexual and sex based harassment, consistent with provisions in other federal anti-discrimination legislation.

• Scope of Sex Discrimination Act extended – to include broadly, among other workers and entities, all members of State and Federal parliament, judges and their staff and consultants, as well as state and territory public servants.

The model WHS Act includes a positive duty to prevent work health and safety risks, including the risk of sexual harassment. For this reason, the Government opted against the AHRC's recommendation to insert a new positive duty into the Sex Discrimination Act on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation in their workplace, supported by AHRC inquiry and enforcement powers. The Government said that any positive duty of this kind would need a closer look as it may create further complexity, uncertainty or duplication.

For employers not yet responding to sexual harassment as a WHS risk, we discuss SafeWork's Preventing workplace sexual harassment guide in our update on managing sexual harassment in the workplace.

Fair Work Act 2009 (Cth)

• FWC sexual harassment ‘stop orders’ – to give workers access to a fast, low cost, informal mechanism to deal with complaints, changes to the Fair Work Act will enable the FWC to make an order to stop sexual harassment in the workplace, as part of the FWC's existing anti-bullying jurisdiction. As with a bullying order, the orders are intended to prevent the risk of future harm. The FWC must be satisfied that the harassment has occurred and orders would not be available if there is no risk of future harassment at work (eg where the harasser is no longer employed at the workplace).

• Sexual harassment can be a valid reason for dismissal – the amendments make it clear that sexual harassment can be a valid reason in determining whether a dismissal was harsh, unjust or unreasonable. This follows on from recent changes to include sexual harassment in the definition of 'serious misconduct' in the Fair Work Regulations 2009 (Cth).

• Miscarriage leave – the changes allow an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or employee’s current spouse or de facto partner, has a miscarriage. This adds to changes in 2020 to improve access to unpaid parental leave and compassionate leave for families dealing with trauma from stillbirths, infant deaths and premature births.

What should you do now?

These changes will start on the day after the Respect@Work Act receives royal assent (expected shortly). However, the anti-harassment order regime will start two months later to give the FWC the time it sought to adjust its processes to 'uphold the interests of vulnerable parties'.

As the AHRC Report reveals, sexual harassment has specific systemic and cultural drivers. While sexual harassment is pervasive and affects both women and men, it is a risk that can be controlled through measures including, most importantly, a strong focus on high trust and genuinely inclusive cultures.

What we know is that:

• Past approaches to address sexual harassment have been insufficient
• Sexual harassment is typically managed by organisations with a focus on minimising reputational damage and legal liability
• Permissive workplace cultures (that tolerate disrespectful behaviours) enable sexual harassment
• Prevalence of sexual harassment is inextricably linked with gender inequality

We are monitoring Government and stakeholder response to the Respect@Work Report, including the work of the Respect@Work Council. The Council was established in response to the AHRC's recommendations – one of its tasks will be to develop a guide to best practice principles for using non-disclosure agreements (NDAs) for sexual harassment workplace matters. As Partner, Amanda Watt has argued, a new form of NDA in the workplace will be a transformative part of how organisations address systemic sex based and sexual harassment at work.

Want more information?

Read more of our insights on managing sexual harassment and discrimination in the workplace.

For more detailed information speak to our expert Employment team.