By Kelly Godfrey
On 24 June 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill) was introduced into Parliament. The Bill amends the Sex Discrimination Act 1984 (Cth) (SD Act) by:
- Prohibiting harassment on the ground of sex. This is defined in the Bill as unwelcome conduct of a seriously demeaning nature in relation to the person harassed by reason of their sex (or a characteristic that appertains or is generally imputed to persons of the sex of the person harassed), 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.
- Extending liability to others in the workplace, such as managers or supervisors, to be held ancillary liable if they aided and permitted the sexual harassment conduct to continue.
- Expanding the definition of workplace participant to enable interns, volunteers, self-employed workers, judges, members of parliament and their staff to be covered by the SD Act.
- Including victimisation as prohibited conduct. For example, threatening or subjecting a person to detriment for making a sexual harassment complaint would be unlawful.
- Enabling complaints to be made to the Australian Human Rights Commission within 24 months, extending the current timeframe of 6 months.
The Bill amends the Fair Work Act 2009 (Cth) (FW Act) by:
- Enabling workers to apply to the Fair Work Commission for a stop sexual harassment order. Unlike the current anti-bullying orders, the requirement for this to be repeated conduct would not apply.
- Including sexual harassment as a valid reason for dismissal.
- Amending the Fair Work Act Regulations 2009 (Cth) to include sexual harassment within the definition of serious misconduct.
- Enabling employees who miscarriage, and their spouse or de facto partner, to use the compassionate leave entitlements.
The Senate referred the Bill to the Education and Employment Legislation Committee for inquiry to report by 6 August 2021.
In anticipation of the Bill becoming law before the end of the year, employers should ensure the following are up to date:
- training and education of workers about the unlawful conduct of sexual harassment; and
- complaint reporting and handling procedures.