The Government has recently introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 to Parliament.
The Bill was drafted in response to the Australian Human Rights Commission’s “[email protected]: Sexual Harassment National Inquiry Report” (‘the Report’).
The Bill proposes a number of changes to the existing law regarding sexual harassment, as explained below.
Changes to the Sex Discrimination Act 1984 (Cth)
- An extension of time to bring sexual harassment complaints to the Human Rights Commission from 6 months to 24 months (with a discretion to grant an extension in exceptional circumstances). This is included in the Bill in recognition of the fact that victims of sexual harassment often don’t feel able to bring complaints at the time the harassment occurred.
- Clarification that sex-based harassment is unlawful. The Report found that it was not well understood that harassment based on someone’s sex is unlawful, even if the harassment is not sexual in nature. There will therefore be a new definition sex-based harassment as “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”.
- Extension of the reach of the Sex Discrimination Act by removing the existing exemption of state public servants.
Changes to the Fair Work Act 2009 (Cth)
- Amendments to the Fair Work Act to make clear that “stop bullying orders” also apply to sexual harassment. These are low cost applications which employees are able to apply to the Fair Work Commission for, and which empower the FWC to order that certain behaviour must cease. There is no power for the FWC to award compensation. Unlike “normal” bullying applications, orders in respect of sexual harassment will not require multiple actions of harassment – a single incident will suffice.
- Amendments to unfair dismissal laws to specifically state that sexual harassment is a valid reason for dismissing an employee.
Critics of the Bill argue that the new laws do not go far enough and merely clarify that certain matters are against the law, when this was always the case. The Government fell short of adopting the Report’s recommendation to put a positive obligation on employers to combat sexual harassment in the workplace, saying such an obligation already exists under health and safety laws (duty to provide employees with a safe place of work).
It is also expected that related changes will be made to the Fair Work Regulations to make clear that sexual harassment is capable of being classified as “serious misconduct” (and therefore able to be relied upon to dismiss an employee without notice).
Introduction of miscarriage leave
The Bill also proposes to extend the availability of compassionate leave (2 days per occasion, paid for full-time and part-time employees, unpaid for casuals) when an employee or their partner suffers a miscarriage. This follows an announcement from the NSW Government in its budget on 22 June, relating to NSW public sector employees, that it will provide five days of paid bereavement leave where an employee or their spouse has a miscarriage.
Unpaid parental leave entitlements were also amended in 2020 to provide greater entitlement to take special maternity leave when an employee suffers a miscarriage or there is a still birth or death early in the child’s life – see our previous article.
We will be monitoring the progress of the Bill and will keep you up to date with its progress.
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