New Changes In Workplace Sexual Harassment Laws In Australia

The Sex Discrimination and Fair Work (Respect@Work) Amendment Bill 2021 was passed by the Australian Government on September 2, 2021, in both Houses of Parliament and will become law once it receives the royal assent. As a result, the Fair Work Act will be amended to enable the Australian employees to apply to the Fair Work Commission for a ‘Stop Sexual Harrassment Order’.

The Respect@Work Bill doesn’t introduce any substantive changes to the employer responsibilities or obligations for sexual harassment at the workplace. It rather clarifies and expands the operation of the existing workplace sexual harassment law and amends the Australian Human Rights Commission Act 1986 (Cth) (ARHC Act), the Sex Discrimination Act 1984 (Cth) (SDA) and the Fair Work Act 2009 (Cth) (FW Act).

Background

The #TimesUp and #MeToo campaigns stirred a global discussion on gender inequality, and sexual harassment continues to do so. As a result, the Respect@Work Report presented by the Sex Discrimination Commissioner Kate Jenkins in 2020 proposed a total of 55 recommendations, constituting a new approach for the employers and the government of Australia to prevent and act on workplace sexual harassment in a better way. The Bill aims to curb the gender inequality and sexual harassment prevalent in workplaces.

Key Changes

Changes To The Fair Work Act

• The Bill amends section 387 of the Fair Work Act to clearly state that sexual harassment can be a valid reason for the dismissal of an employee. The employers can use it as a tool if the dismissed employee claims the dismissal to be “unfair”.
• The Bill enables an employee who has been sexually harrassed to apply to the Fair Work Commission for a ‘Stop Sexual Harassment Order’.
• The Bill adds a new provision under the FW Act, wherein an employee will be entitled to take up to two days of compassionate leaves if the employee or the employee’s de facto partner or current spouse has a miscarriage. The leaves will be unpaid for casuals.

Changes To The Sex Discrimination Act

• The scope of the SDA will now be extended under this Bill, wherein all the paid, unpaid workers, interns, apprentices, volunteers and workers who are self-employed will receive sexual harassment protections under SDA.
• The Bill expressly prohibits any discrimination involving harassment on the grounds of sex. This new provision does not capture any mild forms of misconduct based on a person’s sex or harassment that occurs on the grounds of intersex status or gender identity.
• Under the new provision, persons who aid, permit, induce or instruct sexual harassment may be personally liable under the act. Previously, managers and executives could not be held liable as an accessory for failing to take necessary steps that could have prevented workplace sexual harassment from occurring.

Changes To The Australian Human Rights Commission Act

The Respect@Work Report findings that the short timeframe of six months to make a complaint under the Sex Discrimination Act to the AHRC was a barrier for the victims of sexual harassment to get justice. As a result, the Bill has made amendments to the AHRC Act to extend this timeframe to 24 months.

A victim can also take legal assistance from a workplace sexual harassment lawyer to lodge his/her complaint to the AHRC, which is already prevalent in the law.

What’s Not There

• One of the key things that have not been included in the Respect@Work Bill is imposing a positive duty on employers to take proportionate measures to eliminate sexual harassment, victimisation, and gender-based discrimination. It is already included in the Victorian legislation but not imposed at a federal level.
• Another recommendation in the Respect@Work report not included in the Bill is the empowerment of the AHRC to systematic unlawful discrimination, which includes systematic sexual harassment.

Role Of Employment Lawyers

Under the provisions of the employment law of Australia, an employee dismissed on the grounds of sexual harassment has the right to claim his/her dismissal to be “unfair”. In such cases, the employment lawyers investigate the matters, prepare the case files and fight for the employee.

On the other hand, the lawyers also fight for employees who have been sexually harassed at a workplace and need legal assistance to lodge a case.

Key Takeaways

The new changes brought about by the Respect@Work Bill will surely help reduce sexual harassment cases prevalent in the workplaces of Australia. Amendments have been made in various existing acts, increasing their efficiency and scope. Still, there is room for changes and can be improved for better.

The Employment Lawyers Perth WA firm offers top sexual harassment lawyers and employment lawyers in Perth and in the surrounding areas for people who might have been sexually harassed or unfairly dismissed from their jobs on the grounds of false sexual allegations. Either way, it is advisable to get legal assistance and ensure justice for the innocent.