Introduction
The Australian Government has committed to regulatory and legislative reform to strengthen and simplify national legal frameworks for preventing and addressing sexual harassment in the workplace.
The government’s commitments have been expressed in its formal response to the Australian Human Rights Commission’s Respect@Work report (the Report). The formal response, ‘A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces‘, accepted all 55 of the Report’s recommendations either wholly, partly or in principle.
The recommendations aim to ensure greater alignment between the federal Anti-Discrimination, Work Health and Safety and Fair Work schemes. We have set out some of the proposed amendments below.
Proposed Amendments to the Fair Work Act (FW Act)
The proposed amendments to the FW Act include:
- amending section 387 of the FW Act to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal when determining whether a dismissal was harsh, unjust or unreasonable;
- amending the definition of ‘serious misconduct’ in the Fair Work Regulations 2009 to include sexual harassment; and
- amending the FW Act to clarify that a ‘stop bullying’ order is available in the context of sexual harassment.
Proposed Amendments to Work Health and Safety Act (WHS Act)
The proposed amendments to the WHS Act 2011 (Cth) and the WHS Regulations 2011 (Cth) include:
- amending the Model Work Health and Safety Regulations to explicitly deal with psychological health; and
- introducing a code of practice on managing psychological risks which covers sexual harassment in the workplace.
The Federal Government has accepted this recommendation in principle, noting that SafeWork Australia has recently released guidance material on preventing workplace sexual harassment under the model WHS laws.
Proposed Amendments to the Sex Discrimination Act (SD Act)
The Report recommended amending the Sex Discrimination Act to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation. The Federal Government has noted that, as such a duty already exists under the model WHS laws, this amendment to the SD Act may cause unnecessary duplication and confusion.
Proposed amendments to the Australian Human Rights Commission Act (AHRC Act)
Lastly, the proposed amendments to the AHRC Act include:
- to provide the AHRC with a broad inquiry function to inquire into systemic unlawful discrimination; and
- to introduce a cost protection provision consistent with section 570 of the FW Act.
The Federal Government has accepted both of these recommendations in principle, noting both the AHRC’s existing broad powers of inquiry, as well as the courts’ discretionary power to determine costs orders.
What do employers need to know
None of the proposed amendments mentioned above involve any substantive changes that employers should be alive to. Most, if not all, of the amendments propose to clarify in writing definitions or matters that have always been wide enough to capture sexual harassment.
Irrespective, as no legislation has yet been drafted, it’s business as usual for employers. It is expected that the Federal government will have a package of legislative changes before parliament for its consideration by the end of June 2021.
This article was written by Brad Swebeck, Partner and Nicola Ray, Graduate-at-Law.
