Gov­ern­ment Intro­duces Bill in Response to Land­mark AHRC Respect@Work Report

The Fed­er­al Gov­ern­ment has intro­duced the Sex Dis­crim­i­na­tion and Fair Work (Respect at Work) Amend­ment Bill 2021 (the Bill) in response to the Respect@Work Report (the Report) pre­sent­ed to the Gov­ern­ment by the Sex Dis­crim­i­na­tion Com­mis­sion­er, Kate Jenk­ins, in March last year. As part of its ​‘Roadmap for Respect’ ini­tia­tive the Gov­ern­ment pro­vid­ed a response to the Report on 8 April 2021. Our sum­ma­ry of the Gov­ern­ment response can be found here: Fed­er­al Gov­ern­ment responds to AHRC Respect@Work Report.

The Bill pro­pos­es amend­ments to the Fair Work Act 2009 (FW Act), the Aus­tralian Human Rights Com­mis­sion Act 1986 (AHRC Act) and the Sex Dis­crim­i­na­tion Act 1984 (SD Act) and broad­ly reflects the response of the Gov­ern­ment to the Report. 

Key amend­ments aris­ing from the Bill are as follows:

Exten­sion of time to make a sex­u­al harass­ment com­plaint.

It is pro­posed that the AHRC Act be amend­ed to give the Pres­i­dent of the AHRC dis­cre­tion to ter­mi­nate a com­plaint that relates to the SD Act more than 24 months after the alleged acts, omis­sions or prac­tices took place (cur­rent­ly it is 6 months). Accord­ing to the Explana­to­ry Mem­o­ran­dum to the Bill (EM), this pro­vi­sion has been insert­ed in response to a recog­ni­tion that com­plaints ini­ti­at­ed under the SD Act, includ­ing for sex­u­al harass­ment, are sen­si­tive in nature and may be dif­fi­cult for a per­son to lodge with­in six months.

Orders to stop sex­u­al harass­ment

Part 6 – 4B of the FW Act, which deals with stop bul­ly­ing orders, will be extend­ed to allow a work­er who has been sex­u­al­ly harassed (as defined in sec­tion 28A of the SD Act) at work by one or more indi­vid­u­als to apply to the FWC for an order to stop the sex­u­al harassment. 

Accord­ing the EM, this pro­posed amend­ment will afford those who have suf­fered work­place sex­u­al harass­ment with access to a fast, low cost, infor­mal mech­a­nism to deal with com­plaints. The pro­posed amend­ment gives the FWC the pow­er to make any order it con­sid­ers appro­pri­ate, oth­er than an order requir­ing pay­ment of a pecu­niary amount, to pre­vent a work­er from being sex­u­al­ly harassed at work (pro­vid­ed the FWC is sat­is­fied sex­u­al harass­ment has occurred and there is a risk the harass­ment will continue). 

Accord­ing to the Bill, a work­er will have been ​‘sex­u­al­ly harassed at work’ if, while the work­er is at work in a constitutionally‑covered busi­ness, one or more indi­vid­u­als sex­u­al­ly harass­es the work­er. This def­i­n­i­tion, com­bined with the adop­tion of the def­i­n­i­tion of sex­u­al harass­ment from the SD Act, makes it clear that an order to stop sex­u­al harass­ment can be made after just one instance of sex­u­al harass­ment (as opposed to an order to stop bul­ly­ing which, although in its cur­rent form may deal with sex­u­al harass­ment, requires repeat­ed unrea­son­able behav­iour and for a work­er to estab­lish a risk to health and safety). 

The con­cept of when a work­er is ​‘at work’ has been con­sid­ered in the con­text of the exist­ing anti-bul­ly­ing juris­dic­tion and, accord­ing to the EM, will con­tin­ue to apply in respect of orders to stop sex­u­al harass­ment. That means a work­er does not nec­es­sar­i­ly need to be per­form­ing actu­al work in a work­place to enliv­en the juris­dic­tion; it may be suf­fi­cient that they are engaged in an activ­i­ty with a con­nec­tion to work (such as being present at an off­site work function).

This amend­ment is ret­ro­spec­tive in oper­a­tion and will apply irre­spec­tive of whether a work­er has been sex­u­al­ly harassed at work before, at or after the com­mence­ment of the sec­tion. It also con­tem­plates a work­er from mak­ing an order stop­ping both bul­ly­ing and sex­u­al harass­ment because, as observed in the EM, sex­u­al harass­ment and bul­ly­ing can occur concurrently.

The use of the FWC’s anti-bul­ly­ing juris­dic­tion for sex­u­al harass­ment mat­ters was con­sid­ered by Michael Byrnes in an arti­cle from 2019, which can be found here: Using the Anti-Bul­ly­ing Juris­dic­tion of the Fair Work Com­mis­sion for Sex­u­al Harass­ment Mat­ters. Some of the poten­tial issues iden­ti­fied in that arti­cle, and which have not been resolved by the Bill, include that orders to stop sex­u­al harass­ment will not be avail­able when the per­son who harassed the work­er is no longer employed at the work­place (as there is no risk that the work­er will con­tin­ue to be sex­u­al­ly harassed) and that, unlike sex­u­al harass­ment com­plaints made under the AHRC Act which can progress to a civ­il court, there is no abil­i­ty for the FWC to make an order for compensation.

Paid com­pas­sion­ate leave for mis­car­riages

Com­pas­sion­ate leave in the Nation­al Employ­ment Stan­dards has been extend­ed to cir­cum­stances where an employ­ee, or the employee’s spouse or de fac­to part­ner, has 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.

Valid rea­son for dis­missal

The Bill has made it clear that whether a per­son sex­u­al­ly harassed anoth­er per­son in con­nec­tion with that person’s employ­ment can be a valid rea­son for dis­missal for the pur­pos­es of the unfair dis­missal régime in the FW Act.

Exten­sion of the oper­a­tion of the SD Act

The Bill amend­ments the SD Act to clar­i­fy that it extends to all mem­bers of par­lia­ment, judges, staff and con­sul­tants employed under the Mem­bers of Par­lia­ment (Staff) Act 1984 by includ­ing them in the def­i­n­i­tion of ​‘Com­mon­wealth employ­ee’. An exemp­tion for state pub­lic ser­vants from the oper­a­tion of the SD Act has also been removed.

Harass­ment on the grounds of sex 

This pro­posed amend­ment pro­vides that, in addi­tion to sex­u­al harass­ment (which requires con­duct to be of a sex­u­al nature), a per­son can be harassed on the ground of sex if by rea­son of the sex of a per­son, or a char­ac­ter­is­tic that apper­tains or is imput­ed to per­sons of the sex of a per­son, anoth­er per­son engages in unwel­come con­duct of a seri­ous­ly demean­ing nature. The con­duct must occur in cir­cum­stances in which a rea­son­able per­son, hav­ing regard to all the cir­cum­stances, would have antic­i­pat­ed the pos­si­bil­i­ty that the per­son harassed would be offend­ed, humil­i­at­ed or intimidated.

This new pro­vi­sion reflects the pro­hi­bi­tion on sex-based dis­crim­i­na­tion in the SD Act, and as such it will not only pro­hib­it harass­ment on the basis of some­one’s sex; it will also make it unlaw­ful to harass a per­son because of a phys­i­cal char­ac­ter­is­tic that relates to sex (for exam­ple, a wom­an’s preg­nan­cy) or that soci­ety gen­er­al­ly imputes to a par­tic­u­lar sex (for exam­ple, car­ers respon­si­bil­i­ties). The EM makes it clear that although there may be over­lap between these three grounds in prac­tice, as the rea­son for the harass­ing con­duct may be a com­bi­na­tion of someone’s sex and char­ac­ter­is­tics apper­tain­ing gen­er­al­ly to mem­bers of their sex, this does not pre­vent a claim being made.

Sex­u­al harass­ment and WHS

The def­i­n­i­tion of Per­sons Con­duct­ing a Busi­ness or Under­tak­ing (PCBU), from the mod­el Work Health and Safe­ty Act 2011, is to be insert­ed into the SD Act to ensure its pro­hi­bi­tion on sex­u­al harass­ment and harass­ment on the ground of sex are extend­ed to PCBUs (who have oblig­a­tions in respect of a broad range of paid and unpaid work­ers such as interns, vol­un­teers and self-employed work­ers) as well as employers. 

As not­ed in the EM, the amend­ments to the SD Act pro­vide greater clar­i­ty around when sex­u­al harass­ment and harass­ment on the ground of sex is unlaw­ful in the work­place. This includes a pro­hi­bi­tion on sex­u­al harass­ment or harass­ment on the ground of sex by a PCBU towards a work­er or poten­tial work­er, and by a work­er towards anoth­er worker. 

Vic­tim­i­sa­tion

A new vic­tim­i­sa­tion pro­vi­sion in the SD Act makes it clear that it is unlaw­ful for a per­son to com­mit an act of vic­tim­i­sa­tion against anoth­er per­son, and con­firms that a civ­il appli­ca­tion of unlaw­ful dis­crim­i­na­tion may be made in response to an act of vic­tim­i­sa­tion. This pro­vi­sion will oper­ate along­side the exist­ing crim­i­nal offence of vic­tim­i­sa­tion in the SD Act

Lia­bil­i­ty of third persons

The pro­vi­sion of the SD Act which deals with the lia­bil­i­ty of per­sons who ​’cause, instruct, induce, aid or per­mit’ anoth­er per­son to do an act that is unlaw­ful will be amend­ed to ensure it applies to sex­u­al harass­ment and harass­ment on the grounds of sex. An exam­ple pro­vid­ed by the EM is if a man­ag­er encour­ages one of their junior staff to sex­u­al­ly harass anoth­er staff mem­ber, the man­ag­er may be held liable as an acces­so­ry to the harassment.

The Bill has been referred to the Sen­ate Edu­ca­tion and Employ­ment Leg­is­la­tion Com­mit­tee which will report on 6 August 20021. We will keep a close eye on the Bil­l’s progress and pro­vide an update with any developments.