Fed­er­al Gov­ern­ment responds to AHRC Respect@Work Report

The Fed­er­al Gov­ern­ment has respond­ed to the Respect@Work Report (the Report) which was pre­sent­ed to the Gov­ern­ment by the Sex Dis­crim­i­na­tion Com­mis­sion­er, Kate Jenk­ins, in March last year as part of the Aus­tralian Human Rights Com­mis­sion’s (AHRC) land­mark Nation­al Inquiry into Sex­u­al Harass­ment in Aus­tralian Work­places. Broad­ly, the AHRC made rec­om­men­da­tions based on sub­mis­sions it had received that revealed that the cur­rent sys­tem for address­ing work­place sex­u­al harass­ment in Aus­tralia is com­plex and con­fus­ing for both vic­tims and employ­ers to under­stand and navigate.

As part of its ​‘Roadmap for Respect’ ini­tia­tive the Fed­er­al Gov­ern­ment has agreed (in full, in-prin­ci­ple, or in-part) or not­ed all 55 rec­om­men­da­tions in the Report and announced a num­ber of leg­isla­tive and reg­u­la­to­ry reforms. Those reforms have the objec­tive, in part, of sim­pli­fy­ing and strength­en­ing the legal frame­work under both the Sex Dis­crim­i­na­tion Act 1984 (SDA) and fed­er­al employ­ment leg­is­la­tion (the Fair Work Act 2009 (FW Act) and the Fair Work Reg­u­la­tions 2009 (FW Regulations).

The key take­aways are set out below.

Sex Dis­crim­i­na­tion Act 1984

• Cur­rent­ly, the Pres­i­dent of the AHRC has the dis­cre­tion to ter­mi­nate a com­plaint lodged more than six months after alleged unlaw­ful dis­crim­i­na­tion took place. It has been accept­ed by the Gov­ern­ment that the time­frame for exer­cis­ing the dis­cre­tion to ter­mi­nate be extend­ed to 24 months.
• Sec­tion 105 of the SDA (which deals with the lia­bil­i­ty of third per­sons) will be amend­ed to ensure it applies to sex­u­al harassment.
• Sec­tion 94 of the SDA (which relates to vic­tim­i­sa­tion against anoth­er per­son) will be amend­ed to make it explic­it that any con­duct that is an offence under that sec­tion can form the basis of an action for unlaw­ful dis­crim­i­na­tion in a civ­il claim com­menced in the Fed­er­al Court or Fed­er­al Cir­cuit Court.
• Although not rec­om­mend­ed in the Report, the Gov­ern­ment will clar­i­fy that the scope of the SDA extends to judges and mem­bers of par­lia­ment, and remove the cur­rent exemp­tion for state pub­lic servants.

A rec­om­men­da­tion for fur­ther amend­ments to the SDA to intro­duce a pos­i­tive duty on employ­ers to take rea­son­able and pro­por­tion­ate mea­sures to elim­i­nate sex dis­crim­i­na­tion, sex­u­al harass­ment and vic­tim­i­sa­tion was not­ed but not agreed to by the Gov­ern­ment. That was on the basis the mod­el WHS Laws already place a sim­i­lar oblig­a­tion on busi­ness­es. The Gov­ern­ment has said, how­ev­er, that it will amend the SDA to ensure greater align­ment with mod­el WHS laws.

A rec­om­men­da­tion to amend the Aus­tralian Human Rights Com­mis­sion Act 1986 (AHRC Act) to pro­vide the AHRC with a broad func­tion to inquire into sys­temic unlaw­ful dis­crim­i­na­tion was agreed in part, with the Gov­ern­ment not­ing that the AHRC already has a series of exist­ing func­tions to con­duct investigations.

The Gov­ern­ment agreed to review a rec­om­men­da­tion that a cost pro­tec­tion pro­vi­sion, con­sis­tent with the FW Act, be intro­duced into the AHRC Act.

Fair Work Legislation

The Report rec­om­mend­ed that the FW Act and FW Reg­u­la­tions be reviewed to clar­i­fy that sex­u­al harass­ment, using the def­i­n­i­tion in the Sex Dis­crim­i­na­tion Act, be express­ly pro­hib­it­ed. The Gov­ern­ment has agreed to this pro­pos­al in prin­ci­ple, not­ing it will review that leg­is­la­tion once cer­tain amend­ments to the SDA have been imple­ment­ed and their impact assessed.

Rec­om­men­da­tions express­ly agreed to by the Gov­ern­ment include:

• Sec­tion 387 of the FW Act will be amend­ed to clar­i­fy that sex­u­al harass­ment can be con­duct amount­ing to a valid rea­son for dis­missal in deter­min­ing whether a dis­missal was harsh, unjust or unreasonable.
• The Gov­ern­ment will amend the def­i­n­i­tion of ​‘seri­ous mis­con­duct’ in the FW Reg­u­la­tions to include sex­u­al harass­ment. This amend­ment clar­i­fies that where an employ­er dis­miss­es an employ­ee because of sex­u­al harass­ment, there is no enti­tle­ment to notice under the FW Act.
• Clar­i­fy­ing that a ​‘stop bul­ly­ing order’ (and not a ​‘stop sex­u­al harass­ment order’ as had been rec­om­mend­ed in the Report) will be made avail­able in the con­text of sex­u­al harassment.

Non-Dis­clo­sure Agreements

A top­i­cal issue that arose dur­ing the AHRC’s inquiry was the use of non-dis­clo­sure agree­ments (NDAs) in sex­u­al harass­ment mat­ters. Con­cerns were raised that NDAs could be used to pro­tect the rep­u­ta­tion of the busi­ness or the harass­er and con­tribute to a cul­ture of silence.

The Report rec­om­mend­ed that, in con­junc­tion with the Work­place Sex­u­al Harass­ment Coun­cil (which is chaired by Kate Jenk­ins), the AHRC devel­op a prac­tice note or guide­line that iden­ti­fies best prac­tice prin­ci­ples to inform the devel­op­ment of reg­u­la­tion on the use of NDAs in work­place sex­u­al harass­ment mat­ters. That rec­om­men­da­tion was agreed to by the Gov­ern­ment. The Gov­ern­ment has also agreed to work with state and ter­ri­to­ry gov­ern­ments to amend their human rights and anti-dis­crim­i­na­tion leg­is­la­tion with the objec­tive of achiev­ing con­sis­ten­cy, where pos­si­ble, with the SDA.

We will keep a close eye on the progress of the leg­isla­tive reforms agreed to by the Gov­ern­ment, and will pro­vide updates as and when they occur.