Amended federal legislation governing sexual harassment

Amended federal legislation governing sexual harassment

On 2 September 2021, Federal parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. The legislation follows the Australian Human Rights Commission (AHRC) release in March 2020 of the report into sexual harassment in Australian workplaces Respect@Work: Sexual Harassment National Inquiry Report (2020).

In June 2018, after the emergence worldwide of the #MeToo movement and in recognition of the prevalence of, and harm caused by sexual harassment in workplaces, the Sex Discrimination Commissioner Kate Jenkins and the then Minister for Women, the Hon Kelly O’Dwyer, announced the National Inquiry into Sexual Harassment in Australian Workplaces (the Inquiry).

Sexual harassment means when a person harasses another person on the grounds of sex or a characteristic pertaining to that person’s sex; the person engages in unwelcome conduct of a seriously demeaning nature in relation to the person harassed and does so 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.

The Inquiry’s Term of Reference was to review and report on workplace sexual harassment and make recommendations in relation to:

  • It’s prevalence, nature and reporting in Australian workplaces;

  • the role of technology;

  • it’s drivers, including risk factors for particular population groups or in different workplace settings;

  • the current legal framework;

  • existing measures to address it, and identify examples of good practice; and

  • its impacts on individuals and businesses, including its economic impact.

Findings of the Inquiry included that the current system for addressing workplace harassment in Australia is both complex and confusing for victims and employers. Further, not only is a heavy burden placed on individuals to make a complaint, many people who experience sexual harassment at work are unlikely to ever report it as they fear that making a complaint will have a negative impact on their reputation, career prospects and relationships within their community or industry.

Some of the more significant amendments to the legislation include:

  • making sexual harassment a sackable offence;

  • clarifying that harassing a person on the basis of sex is prohibited;

  • significantly extending the timeframe to lodge a sexual harassment with the AHRC from the current 6 months to 24 months;

  • recognising that sexual harassment is a workplace health and safety issue, similar to bullying. Critically, this means that complainants can seek an ‘order to stop sexual harassment’ (similar to a stop bullying order) through the Fair Work Commission;

  • broadening the definition of what constitutes work, and by whom, meaning that more vulnerable workers will be covered by the legislation, as well as people working from home;

  • the removal of exemptions for public officials, including judges, members of parliament and their staff from complaints.

While the Federal government expressed satisfaction that the legislation reflected all key elements of the report, both the Labor Party and the Greens were critical of proposed legislated amendments that were voted down. These included:

  • introducing 10 days paid Family and Domestic Violence Leave into the National Employment Standards (NES);

  • placing a positive duty on employers to take reasonable steps to prevent sexual harassment in the workplace;

  • introducing a simpler and quicker process to deal with complaints;

  • broadening the powers of the Sex Discrimination Commissioner to investigate inquiries.

Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021

SEX DISCRIMINATION AND FAIR WORK (RESPECT AT WORK) AMENDMENT BILL 2021

Respect@Work: Sexual Harassment National Inquiry Report (2020) | Australian Human Rights Commission

For questions about sexual harassment, discrimination, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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