New Workplace Sexual Harassment Legislation Passes Parliament

KEY TAKE-OUTS:

Australian employees are now better protected from sexual harassment from their colleagues and leaders after the passing of the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. The new legislation enhances protections against sexual harassment and other forms of sex discrimination in the workplace

Workplace Sexual Harassment Legislation Passes Parliament

On 2 September 2021, the Australian Government passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 taking into consideration the previous recommendations made by Sex Discrimination Commissioner, Kate Jenkins, in her Respect@Work Report.

The Bill makes changes to the Fair Work Act 2009 (Cth), the Australian Human Rights Commission Act 1986 (Cth), and the Sex Discrimination Act 1984 (Cth) to better prevent and respond to sexual harassment in the workplace.

The key changes include:

1. An employee can take compassionate leave if they, or their spouse or de facto partner, has a miscarriage.
2. A worker who has been sexually harassed can apply to the Fair Work Commission for a ‘Stop Sexual Harassment’ order to stop the sexual harassment.
3. Sexual harassment in connection with a person’s employment is a valid reason for dismissal.
4. The timeframe to lodge a complaint that relates to the Sex Discrimination Act 1984 has been extended from six months to two years after the acts, omissions or practices took place.
5. A complaint of victimisation can be considered as a criminal or a civil matter.
6. Clarifying that harassing a person on the basis of sex is prohibited under the Sex Discrimination Act 1984.
7. Protecting more workers by expanding the coverage of the Sex Discrimination Act 1984 to include members of parliament, judges, and their staff.

Despite these positive changes, the Federal Parliament did not impose a positive duty on employers to take reasonable steps to prevent workplace sexual harassment, sex discrimination and victimisation. Employers are still bound by their existing obligations, however, under the Work Health and Safety legislation.

The Federal Parliament also voted down cost protections for complainants. Unfortunately, this means complainants are still burdened to enter a lengthy complaints process at their own cost and risk.

Employers should ensure they have sexual harassment policies in place and should take all employee complaints of sexual harassment seriously. Employers should also ensure that their employees are adequately trained in their sexual harassment policies and practices, as employers can be vicariously liable for incidents of sexual harassment by their employees in the course of, or in connection with, their employment.

If you are an employer, we recommend updating your training and sexual harassment practices and policies to reflect the changes in the law. We also recommend reviewing and updating employment agreements to bind employees to sexual harassment policies and implement workplace training so employees are aware of their obligations and rights. For assistance, please contact our employment team.

If you are a victim of workplace sexual harassment, please contact our team so that we may assist you. We understand that this can have a tremendous toll on your psychological and emotional health. Here at Coutts we have an experienced team in employment and personal injury matters and will assist you through the process of a claim.

ABOUT KARENA NICHOLLS:

Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach that has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.