One Asia Lawyers Compliance News Letter (October 2021)

We published One Asia Lawyers Compliance News Letter (October 2021).
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→One Asia Lawyers Compliance News Letter (October 2021)

One Asia Lawyers Compliance News Letter(October 2021)

Australia’s New Protections Against Sexual Harassment and Sex-BasedHarassment at Work

In response to recommendations outlined by the Australian Human Rights Commission in the Respect@Work Report, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021(the “Amendments”) took effect on 10 September 2021. The Amendments clarify and expand the scopes of the Fair Work Act 2009, the Sex Discrimination Act 1984 and the Australian Human Rights Commission Act 1986.

Amendments to the Fair Work Act

The Amendments introduce new orders to stop sexual harassment, dismissal on the grounds of sexual harassment and the extension of compassionate leave to include miscarriage under the Fair Work Act (“FWA”). Protection from sexual harassment under the FWA only applies to certain workers in Australia.1 These are explained in further detail below.

1. Orders to stop sexual harassment

The FWA already has in place an anti-bullying regime to allow orders to stop bullying at work. The new Amendments expand the scope of this regime to include orders to stop sexual harassment, and an eligible worker who believes that they have been sexually harassed at work can now apply to the Fair Work Commission (FWC)2 for an order to stop sexual harassment. Applications for such orders can be made by eligible workers3 to the FWC from 11 November 2021.4 To issue such an order, the FWC must be satisfied that sexual harassment has occurred at work, and that there is a risk that the worker will be sexually harassed at work again.5

2. Dismissal on grounds of sexual harassment

The Amendments clarify that sexual harassment at work is a form of serious misconduct6 and can be a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable under the FWA.7 Serious misconduct can result in dismissal without notice.8

3. Compassionate leave to include miscarriage

Under the FWA, all employees are entitled to take two days paid compassionate leave (and for casual employees, two days unpaid compassionate leave). 9 This applies when a member of an employee’s immediate family10 or household dies or contracts or develops a life-threatening illness or injury. The Amendments now allow for miscarriage as a reason to take compassionate leave. This measure has been introduced with the aim of reducing discrimination against pregnancy and to overall enhance women’s economic security.11

Amendments to the Sex Discrimination Act

The Amendments expand the scope of applicability of the Sex Discrimination Act (“SDA”), introduce a new prohibition against sex-based harassment, extends accessorial liability to sexual and sex-based harassment, and introduces a civil cause of action for acts of victimisation under the SDA.

1. Expanded scope of applicability

Following the Amendments, the SDA now provides protection against sexual harassment for more types of workers. It applies to all “workers” and “persons conducting a business or undertaking”, in accordance with the definitions stipulated by the Work Health and Safety Act 2011.12 All paid and unpaid workers including volunteers, interns, trainees, contractors and self-employed persons, are now protected. In addition, the Amendments extend protection under the SDA to members of Parliament, judges, their staff, and state employees.13

2. New prohibition against sex-based harassment

The Amendments introduce a new provision under the SDA, which explicitly prohibitssex-based harassment (the term used in the legislation being “harassment on the ground of sex”). Whilst previously the SDA may not have captured all situations of sex-based harassment, this explicit prohibition now ensures protection against all such situations. The Amendments also provide a new definition for sex-based harassment as follows: a person harasses another person on the grounds of sex if, (a) by reason of the sex or a characteristic that appertains generally to or is generally imputed to their sex, the person engages in unwelcome conduct of a seriously demeaning nature in relation to the person harassed, and (b) the person engages in such conduct in circumstances in which a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.14

3. Accessorial liability

Under the SDA, a person who causes, instructs, induces, aids or permits another person to conduct an unlawful act, is also taken to have engaged in the same act.
Following the Amendments, this provision now also applies to sexual and sex-based harassment.15

4. Acts of victimisation

Under the SDA, an act of victimisation (whereby a person is threatened or subjected to detriment for making or proposing to make a complaint) is a criminal offence.16 In addition to this already-existing provision, the Amendments clarify that such acts of victimisation are a form of unlawful discrimination, which can form the basis of civil action.17 Accordingly, acts of victimisation can now give rise to both criminal and civil proceedings.

Amendment to the Australian Human Rights Commission Act

Previously under the Australian Human Rights Commission (AHRC) Act, the AHRC President was able to terminate a complaint lodged more than six (6) months after the alleged acts, omissions or practices took place. However, following the Amendments, this timeframe has been extended to twenty-four (24) months for complaints related to the SDA.18 This change has been implemented to reduce procedural barriers for complainants under the SDA.19

1 Workers include employees, contractors, subcontractors, outworkers, apprentices, trainees, interns, students gaining work experience, and some volunteers.
Fair Work Ombudsman website. Sexual harassment in the workplace.
<https://www.fairwork.gov.au/employee-entitlements/bullying-harassment-discrimination-in-theworkplace/sexual-harassment-in-the-workplace >
2 The Fair Work Commission is Australia’s independent national workplace relations tribunal responsible for workplace functions and regulations.
3 More information about eligibility and the process making these applications will be made available by the Fair Work Commission soon. (As stated by the Fair Work Ombudsman website. New sexual harassment protections take effect.)
<https://www.fairwork.gov.au/about-us/news-and-media-releases/website-news/new-sexual-harassmentprotections-take-effect >
4 Fair Work Commission website. Stopping sexual harassment at work.
<https://www.fwc.gov.au/about-us/news-and-events/stopping-sexual-harassment-at-work>
5 Subsection 789FF(1) of the Fair Work Act as amended by item 24 of the Sex Discrimination and Fair Work(Respect at Work) Amendment Act 2021.
6 As stipulated by item 2 of the Fair Work Amendment (Respect at Work) Regulations 2021, sexual harassment is now included in the list of examples of serious misconduct under the Fair Work Regulations 2009.
7 As stipulated by item 10 of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 which amends section 387 of the Fair Work Act.
8 Fair Work Ombudsman website. Notice & Final Pay.
<https://www.fairwork.gov.au/ending-employment/notice-and-final-pay>
9 Section 104 of the Fair Work Act
10 Immediate family is an employee’s spouse or former spouse, de facto partner or former de factor partner, child, parent, grandparent, grandchild, sibling; or any child, parent, grandparent, grandchild or sibling of the employee’s (former or current) spouse or de factor partner. This definition includes step-relations and adoptive relations.
11 Attorney General for Australia and Minister for Industrial Relations. Government passes legislation to prevent and address sexual harassment in Australian workplaces.
<https://www.attorneygeneral.gov.au/media/media-releases/government-passes-legislation-prevent-andaddress-sexual-harassment-australian-workplaces-2-september-2021>
12 This amendment is stipulated by item 40 of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (corresponding to subsection 4(1) of the Sex Discrimination Act 1984).
13 These amendments are stipulated by items 35, 36 and 37 of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (all corresponding to subsection 4(1) of the Sex Discrimination Act 1984).
14 This definition has been added under Section 28AA of the Sex Discrimination Act 1984 (in accordance with item 60 of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021).
15 Section 105 of the Sex Discrimination Act 1984 (in line with item 86 of the Sex Discrimination and Fair Work(Respect at Work) Amendment Act 2021).
16 As had already been stipulated before the amendments, under section 94 of the Sex Discrimination Act 1984.
17 Section 47A of the Sex Discrimination Act 1984 (as added by item 77 of the Sex Discrimination and Fair Work(Respect at Work) Amendment Act 2021).
18 As reflected in item 3 of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (to amend section 46PH (1)(b) of the Australian Human Rights Commission Act)
19 Attorney General for Australia and Minister for Industrial Relations. Government passes legislation to prevent and address sexual harassment in Australian workplaces.
<https://www.attorneygeneral.gov.au/media/media-releases/government-passes-legislation-prevent-andaddress-sexual-harassment-australian-workplaces-2-september-2021>