New protections against workplace sexual harassment

On 11 September 2021, new protections against workplace sexual harassment took effect when the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Amendment Act) came into force.

The Amendment Act amends:

the Sex Discrimination Act 1984 (Cth) (SD Act);
the Fair Work Act 2009 (Cth) (FW Act); and
the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

SD Act

The SD Act provisions that prohibit sexual harassment and sex-based discrimination now apply to employers in the state public sector as well as to members of parliament, their staff, and judges at all levels of government. They also apply to interns, volunteers and self-employed workers.

In addition to prohibiting sexual harassment and sex-based discrimination, the SD Act now prohibits harassment on the ground of sex.

The differences between the existing prohibition against sexual harassment and the new section 28AA provision are explained in the table below:

Requisite elements	Sexual harassment	Sex-based harassment
Conduct of a sexual nature	Yes	No
Unwelcome	Yes	Yes
Engaged in by reason of someone’s sex, characteristics that relate to sex or that society generally imputes to a particular sex	No	Yes
Conduct is seriously demeaning in nature	No	Yes
A reasonable person, having regard to all the circumstances, would need to have anticipated that the person/s would be offended, humiliated or intimidated by the conduct	Yes	Yes

The requirement that the conduct be ‘seriously demeaning’ is intended to exclude mild forms of inappropriate conduct based on a person’s sex.

AHRC Act

The AHRC Act has been varied to allow complainants up to 24 months to bring a claim (as opposed to the previous timeframe of 6 months).

FW Act

The FW Act has been varied to give the Fair Work Commission (FWC) power (after 11 November 2021) to make an order to stop sexual harassment in the workplace. Workers who reasonably believe that they have been sexually harassed at work may apply to the FWC for an order to stop the sexual harassment in the same way as a bullied worker can seek an anti-bullying order.

Unlike bullied workers, the applicant will not need to show the sexual harassment was repeated or part of a pattern, and the application can be made in one-off cases. The applicant will also not need to show a risk to health and safety, given sexual harassment is a known and accepted work health and safety risk. The sexual harassment needs to be ‘at work’. Like bullying, this can be when the worker is engaged in some other activity that is authorised or permitted by their employer, and include work events and coffee breaks.

On 10 July 2021, an amendment to Fair Work Regulations provided that sexual harassment is grounds for serious misconduct, disentitling an employee to minimum statutory notice under the FW Act. For the purposes of the Regulation, sexual harassment is defined as conduct that is prohibited by section 28A of the SD Act. A note has been inserted in the FW Act unfair dismissal provisions to state that sexual harassment is a valid reason for dismissal for the purposes of unfair dismissal claims.