Respect@Work Legislative Reform – What employers should know


7 September 2021


On 2 September 2021, the Commonwealth Government passed the Sex Discrimination and Fair Work  (Respect at Work) Amendment Act 2021 (the Respect@Work Act) to amend the Fair Work Act 2009 (Cth) (FWA) and the Sex Discrimination Act 1984 (Cth) (SDA).

The Respect@Work Act was introduced for the purposes of implementing a number of recommendations contained in the national inquiry report commissioned by the Australian Human Rights Commission with respect to sexual harassment in Australian workplaces.

 

Changes to the Fair Work Act

The Respect@Work Act introduces the following key amendments to the FWA:

  • the introduction of ‘sexual harassment stop orders’ so that the Fair Work Commission (FWC) can make an order to stop sexual harassment in the workplace consistent with the FWC’s existing anti-bullying jurisdiction; and
  • clarifying that engaging in sexual harassment can be a valid reason for dismissal under the FWA.

 

Changes to the Sexual Discrimination Act

The Respect@Work Act makes the following amendments to the SDA:

  • expressly stating that harassing a person on the basis of sex is a form of unlawful conduct. Examples include:
    • asking intrusive personal questions based on a person’s sex;
    • making inappropriate comments and jokes to a person based on their sex;
    • displaying images or materials that are sexist, misogynistic or misandrist;
    • making sexist, misogynistic or misandrist remarks about a specific person;
    • requesting a person to engage in degrading conduct based on their sex;
  • broadening the scope of workers who will be covered by the SDA by adopting the definitions of ‘worker’ and ‘PCBU’ (persons conducting a business or undertaking) used in the model Work Health Safety legislation so that interns, volunteers and self-employed workers will now be covered;
  • clarifying that a complaint of victimisation can be considered either a civil or criminal matter;
  • providing that a complaint can only be terminated by the President of the Australian Human Rights Commission if it is made more than 24 months (rather than 6 months) after the alleged unlawful conduct took place;
  • extending ancillary or accessorial liability to sexual and sex-based harassment; and
  • extending the scope of the SDA to, among other workers and entities, members of parliament, judges and their staff and consultants, as well as state and territory public servants.

 

What employers should do now

Employers should:

  • review their existing work health and safety plans, policies and procedures (including harassment and grievance handling policies); and
  • consider whether the current workplace culture is appropriately safe and inclusive, and if not, consider whether sexual harassment and sex discrimination training is required.

 

This article provides general commentary only.  It is not legal advice.  Before acting on the basis of any material contained in this article, seek professional advice.

 

Authors:

Paul Dugan, Principal in our Disputes Team

Contact
Email:  pdugan@dmawlawyers.com.au
Direct Telephone:  +61 8 8210 2266

 

Lachlan Chuong, Associate in our Disputes Team

Contact
Email:  lchuong@dmawlawyers.com.au
Direct Telephone:  +61 8 8210 2281