Respect@Work update

by | Sep 6, 2021 | Employment Law and Workplace Relations Blog

The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill) has recently been passed by both houses of the Federal Parliament.

The Bill was introduced on 24 June 2021, on the back of Sex Discrimination Commissioner, Kat Jenkins’ world-leading national enquiry into sexual harassment in Australian workplaces – colloquially known as the ‘Respect@Work Report’ (Report).

The Report made 55 recommendations, including 12 recommendations for legislative reform at the federal level of which 6 have been incorporated into the Bill in some form.

However, the process has not been without controversy, with the Government successfully thwarting an attempt by Labor and the Greens to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation (which was one of the recommendations contained in the Report.

Nonetheless, the Bill maintains some impactful amendments to the Sex Discrimination Act 1984 (SD Act) and the Fair Work Act 2009 (Cth) (FW Act), namely:

  1. Clarifying that an aim of the SD Act is to “achieve, so far as practicable, equality of opportunity between men and women”.
  2. Expanding the scope of the SD Act by adopting the concepts of “worker” and “person conducting a business and undertaking” which are used in the Model Work Health and Safety laws across Australia.
  3. Introducing a new form of unlawful conduct under the SD Act called “sex-based harassment” which means unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances in which, a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.
  4. Amending the discretionary grounds on which a complaint may be terminated by the President of the Australian Human Rights Commission, effectively extending the limitation period for making a complaint from six months to 24 months.
  5. Clarifying that a complaint of victimisation can form the basis of a civil action for unlawful discrimination.
  6. Prohibiting a person from instructing, inducing, aiding or permitting another person in engaging in sexual harassment or sex-based harassment.
  7. Creating the ability for the Fair Work Commission to make anti-harassment orders to prevent the risk of future harm.
  8. Clarifying that sexual harassment is a valid reason for a dismissal.
  9. Allowing access to a minimum compassionate leave entitlement of two days’ paid leave (unpaid for casuals) for employees who have a miscarriage (or their spouse or de facto partner).

The Bill includes application and transitional arrangements to deal with current or emerging complaints that relate to conduct that occurred before the commencement of the amendments.

The Bill is now expected to be presented to the Governor-General for royal assent, and on the following day, the Act will commence in its entirety, except for amendments to the anti-harassment provisions in the FW Act.

These amendments will be delayed by two months to allow the Fair Work Commission to update its procedures to deal with the new anti-harassment complaints.

Please contact our Employment and Workplace Relations team if you require any further information or assistance, including reviewing policies and procedures to ensure compliance.

Authors: Natalie Zurita and Jesse Rutigliano.

Natalie Zurita

Natalie Zurita