Changes to workplace sexual harassment laws – what employers should know
The Morrison Government has now passed the much anticipated Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Respect@Work Bill) which implements the Australian Government’s response to a number of recommendations in the Sex Discrimination Commissioner’s Respect@Work Report.
The Respect@Work Bill will become law once it receives royal assent which is expected any day now.
What are the changes to workplace sexual harassment laws?
The Respect@Work Bill does not introduce substantive changes to employer obligations or responsibilities for workplace sexual harassment. Rather, it seeks to clarify and expand the operation of existing laws and amends the Australian Human Rights Commission Act 1986 (Cth) (ARHC Act), the Fair Work Act 2009 (Cth) (FW Act) and, of course, the Sex Discrimination Act 1984 (Cth) (SDA).
The key changes to be aware of include:1
Key changes to the Fair Work Act
- Fair Work Commission (FWC) can make orders to stop sexual harassment in the workplace:2 Changes to the FW Act will enable the FWC to make an order to stop sexual harassment in the workplace as part of its existing anti-bullying jurisdiction. In line with the existing regime, orders are limited to stop ‘conduct at work’. The meaning of ‘at work’ is not defined in the FW Act and is subject to judicial interpretation. Based on existing case law about the meaning of the phrase, it is unclear whether sexual harassment that occurs on social media or at work related events, during work related travel or at work functions will be covered. Additionally, in order to make the order, the FWC must be satisfied that the harassment has occurred and there is a risk of future harassment at work. This means there are conceivable situations where an employee who has experienced one off conduct may not be eligible for a remedy, even if sexual harassment has occurred and the employee has an ongoing fear of the sexual harassment re-occurring.
- Sexual harassment is a valid reason for dismissal: The Respect@Work Bill amends section 387 of the FW Act to make it clear that sexual harassment can be a valid reason in determining whether a dismissal was harsh, unjust or unreasonable. While sexual harassment as a valid reason for dismissal is not new and employers will still be required to investigate the conduct and ensure procedural fairness, the change will likely assist employers to defend unfair dismissal claims in the circumstances.
- Miscarriage leave: The FW Act will include a new entitlement for employees to take up to two days of paid compassionate leave if the employee, or the employee’s current spouse or de facto partner, has a miscarriage. Casuals will be entitled to up to two days of unpaid leave.
Key changes to Australian Human Rights Commission Act and Sex Discrimination Act
- Scope of SDA extended: Protections in the SDA now expressly extend to members of Parliament, judges and public servants. The definitions of ‘workplace participant’ and ‘workplace’ have also been extended to cover all persons in the world of work in line with the concepts of ‘worker’ and ‘persons conducting an business or undertaking’ under model health and safety laws. This means that interns, apprentices, volunteers, unpaid workers and workers who are self-employed may be protected. Employers will need to consider how they regulate the conduct of all workers who interact with the business and in an evolving world of work.
- Harassment on the ground of sex now a new standalone prohibition: Sex-based harassment is defined as unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances that are in line with the existing test for sexual harassment (ie. where a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated). The new provision does not capture mild forms of inappropriate conduct based on a person’s sex or harassment that occurs on the ground of gender identity or intersex status.
- Ancillary or accessorial liability provisions extended: Persons who cause, instruct, induce, aid or permit sexual harassment and sex based harassment may be personally liable under the SDA. Previously, a person could not be held liable for aiding or permitting sexual harassment. This means managers and executives may be exposed to liability as an accessory for failing to take adequate steps to prevent and respond to workplace sexual harassment that was a possibility of occurring, or that they were aware of, and did nothing to address.
- AHRC discretion to terminate complaints on the basis of time delay extended from six to 24 months: The AHRC’s discretion to terminate a complaint made under the SDA on the basis of time delay has been extended in response to the Respect@Work Report findings that the short timeframe in which to make a complaint to the AHRC was a barrier to access to justice for victims of sexual harassment. This may result in more employees considering making their sexual harassment claim in the Federal jurisdiction (which is a costs jurisdiction) as State and Territory jurisdictions generally have more limited discretionary timeframes (eg. 12 months) for the making of sexual harassment complaints.
What about the positive duty?
Criticism of the Respect@Work Bill is centered on it not including a positive duty on employers to proactively take all reasonable steps to eliminate sexual harassment or amendments to provide the AHRC with a full suite of corresponding enforcement powers. By placing the responsibility of enforcing anti-discrimination laws largely on the individual, critics argue that systemic causes of sexual harassment may not be addressed. The Government has proceeded on the basis it considers that employers already have a positive duty under work, health and safety laws to ensure that all persons in the workplace are not exposed to health and safety risks, so far as is reasonably practicable. This includes the risk of being sexually harassed.
It is now incumbent on employers to determine their own initiatives to support real and substantive change in how workplace sexual harassment is addressed. Employers will need to take all reasonable steps to prevent and respond to workplace sexual harassment.
Under the SDA and the other State and Territory anti-discrimination laws, employers can still be vicariously liable for incidents of sexual harassment by their employees or agents in the course of, or in connection with, their employment. Consequently, employers are not, therefore, immune from a duty under anti-discrimination laws to take proactive steps to both discourage workplace sexual harassment and respond fairly and sensitively when it occurs.
Further, employers in Victoria have a statutory positive duty to eliminate sexual harassment and other forms of discrimination as far as possible under the Equal Opportunity Act 2010 (Vic). The Victorian Equal Opportunity and Human Rights Commission does not have enforceable powers, however, it may investigate complaints of serious sexual harassment, seek orders to compel the production of documents, make public reports about its findings, and intervene in proceedings.
Positive duties under work, health and safety laws and anti-discrimination laws are not the same. It is important for employers to treat sexual harassment as a workplace hazard and to take a work, health and safety approach to limiting the risks. However, it is equally important to acknowledge that sexual harassment is a form of discrimination, caused by systemic gender inequality, that occurs beyond the workplace which must be addressed holistically from an anti-discrimination perspective.3
How can we help you?
We recommend that employers conduct an urgent ‘stress test’ of their organisation’s policies and procedures to ensure they are up to date and fit for purpose.
Additionally, all workers, managers and the Board need to understand their rights and obligations with respect to workplace sexual harassment.
We can assist employers to:
- review and update existing policies and procedures;
- review and update employment and contractor agreements to ensure volunteers, interns, trainees and apprentices, independent contractors and consultants are contemplated by, and bound to, workplace sexual harassment policies, complaints protocols and codes of conduct; and
- plan and deliver up to date and best practice workplace training for all levels of your organisation.
However, employers should not rely solely on up to date policies and annual workplace training. Proactive preventative action that will address sexual harassment at a systemic level is recommended. This includes:
- live, tailored training for Senior Management and the Board;
- a formal risk management framework addressing sexual harassment in the workplace that is “owned” by the Board as a standing agenda item for risk and compliance committee oversight;
- fair and sensitive complaints and reporting processes that are clearly communicated and accessible to all workers, and include anonymous or other supported reporting mechanisms; and
- a confidential and secure system for tracking and monitoring complaints data to enable compliance with reporting obligations and continuous improvement.
There is a groundswell of movement away from the narrow focus on corporate liability and minimising reputational damage to creating a workplace culture that is physically and psychologically safe for all workers. Employers and their Boards need to understand and respond to the specific risks of their workplaces and take a whole of organisation approach which is evidence based, deliberate and consultative to effectively address workplace sexual harassment.
This article was written by Ali Gronow, Senior Associate and Mark Howard, Partner.
1Other changes include the creation of a new objects clause in the SDA to make it clear that the SDA aims to achieve, so far as practicable, equality of opportunity between men and women; and clarifying that a complaint of victimisation can be considered as either a civil or criminal matter.
2The stop sexual harassment jurisdiction in the Fair Work Commission will not come into effect until 2 months following commencement of the laws, to allow the Commission to prepare and update its systems and processes.
3Victoria Legal Aid, ‘Respect at Work: Ensuring Real Change, Submission to the Senate Education and Employment Committee into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth)’ 9 July 2021.