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Employment and Migration Blog

Sexual Harassment in the Workplace

Posted by Shawn Skyring , Laure Kenworthy on 3 Nov 2021

Recommendations made in the Sex Discrimination Commissioner’s Respect at Work Report (2020) have now been implemented in the new Sex Discrimination and Fair Work (Respect at Work) Amendment Bill (Respect at Work Bill), which is expected to become law imminently. The Respect at Work Bill has addressed a number of the recommendations made (but not all of them) by clarifying and expanding on the operation of existing laws, and proposing amendments to a number of key laws. These are explained below.

Key Changes to Sexual Harassment Laws

It is proposed that the following statutes will be amended under the Respect at Work Bill:

  1. Fair Work Act 2009 (Cth) (FW Act),
  2. Sex Discrimination Act 1984 (Cth) (SDA), and
  3. Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

A. FW Act

Under the FW Act, the Fair Work Commission (FWC) will be given the power to make an order to stop sexual harassment in the workplace. To make an order to stop sexual harassment, the FWC must be satisfied that:

  1. harassment has occurred, and
  2. there is a risk of future harassment at work.

In the first instance, it is anticipated that the second arm of this test may present a barrier to individuals who experience sexual harassment on a single occasion.

Although the FWC will be able to make an order to stop conduct at work, judicial interpretation will be required to clarify what ‘conduct at work’ means, as this is not currently defined by the FW Act. In addition, existing case law does not clearly establish whether ‘at work’ will include, for example, sexual harassment that occurs between colleagues on social media, at work-related events and functions, or during work-related travel.

Importantly, under section 387 of the FW Act, sexual harassment will be an express, valid reason for dismissal, to be considered in the context of whether a dismissal was harsh, unjust or unreasonable. Whilst not technically a new function as employers have an obligation under the FW Act to uphold procedural fairness when investigating conduct, the addition is likely to assist employers to defend unfair dismissal claims in applicable circumstances.

Under the proposed Respect at Work amendments, employees will also be able to take up to two days of paid compassionate leave if the employee or their current spouse or de facto partner has a miscarriage. For casual employees, this entitlement will be for up to two days of unpaid leave.

B. SDA

New amendments to the SDA will ensure that employee protections under the Act expressly apply to members of Parliament, judges and public servants, whose employment status has previously precluded them from such protection. In line with this, the definitions of ‘workplace participant’ and ‘workplace’ have been broadened to encompass all persons in work, similar to the way the concepts of ‘worker’ and ‘persons conducting a business or undertaking’ operate in model health and safety laws. Subject, of course, to how employers regulate the conduct of their own workers, this amendment will ensure that persons including interns, apprentices, volunteers, unpaid workers and self-employed workers may be protected.

In addition, a new category of unlawful conduct has been proposed, being ‘harassment on the ground of sex’. This is where a person engages in ‘unwelcome conduct of a seriously demeaning nature’ to another person by reason of another person’s sex (or a characteristic thereof), in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

This new provision will likely overlap in some respects with the existing categories of sexual harassment and sex discrimination. Simultaneously, the amendment has been criticised for failing to capture mild forms of inappropriate conduct based on a person’s sex, which would fall short of “seriously demeaning”.

Furthermore, existing provisions of the SDA have protected a person from being held liable for aiding or permitting sexual harassment. However, new amendments will extend the ancillary or accessorial liability provisions to ensure that persons who cause, instruct, induce, aid or permit sexual harassment and sex-based harassment may be personally liable under the SDA, including managers and executives who fail to take adequate steps to prevent and respond to workplace sexual harassment where there was a possibility that it might occur, or where they were aware that it had occurred and did nothing to address it.

C. AHRC Act

Under the amendments to the AHRC Act, the AHRC will have the discretion to terminate complaints made under the SDA on the basis of a time delay of 24 months rather than 6. This is intended to address the findings of the Respect at Work Report that a short timeframe in which complainants could make a AHRC complaint was a barrier to access to justice. It is expected that the new change will result in more employees making their sexual harassment claim in the Federal (costs) jurisdiction to avoid the limiting time frames of State and Territory jurisdictions.

Additional Considerations

Employers already have a positive duty under workplace, health and safety (WHS) laws to ensure that all persons in the workplace are not exposed to health and safety risks, so far as is reasonably practicable, including the risk of being sexually harassed. However, the Respect at Work Bill has received criticism for failing to include within the SDA a positive duty on employers to proactively take all reasonable steps to eliminate sexual harassment, and within the AHRC, enforcement powers that correspond with this positive duty.

We expect that judicial intervention will inevitably clarify the interaction between the existing WHS duty and the new sexual harassment amendments, though this may take some time.

Take Aways

  • Employers still have a duty under WHS laws to take all reasonable steps to ensure the health and safety of their employees, which encompasses a duty to prevent sexual harassment
  • The FWC will be able to make orders to stop sexual harassment where sexual harassment has occurred and there is a risk of future harassment at work
  • Under the FW Act, sexual harassment will be a valid reason for dismissal of an employee
  • ‘Harassment on the ground of sex’ will be a new category of unlawful conduct under the SDA
  • Extended accessorial liability provisions under the SDA may capture managers and directors who fail to take reasonable steps to prevent sexual harassment at work

If you have any questions about how to manage a sexual harassment incident in your workplace, or relating to any of the above amendments once these take effect, please do not hesitate to contact a member of Coleman Greig’s Employment Law Team, who would be more than happy to assist you today.

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