Sexual harassment legislation post the Respect@Work report
There have been significant changes that have recently come into effect in Australia relating to how Australia approaches sexual harassment within the workplace. This is the result of a report provided by the Australian Human Rights Commission in 2020, known as the ‘Respect@Work Report’. The changes have seen new laws being passed, specifically the Sex Discrimination and Fair Work (Respect@Work) Amendment Act 2021. This has seen amendments made to the following Commonwealth legislation:
- Fair Work Act 2009;
- Sex Discrimination Act 1984; and
- Australian Rights Commission Act 1986.
In relation to these changes, Attorney General Michaelia Cash said:
“This legislation [being the Respect@Work Amendments Act] is a critical step forward and will enhance protections against sexual harassment and other forms of sex discrimination in Australian workplaces.”
As referred to above, the Respect@Work Report, and review which led to the report, was the catalyst for these much-needed changes to the way in which sexual harassment in the Australian workplace is handled. The report made 55 recommendations to the Federal Government in relation to addressing what the report considered inadequate, and somewhat outdated, legislation that surrounded sexual harassment in the workplace. The Federal Government has endorsed all 55 recommendations in part, wholly or in principle.
Six reforms coming into effect
On 10 September 2021, the Australian Government, acting on the findings of the Respect@Work Report, took a positive step forward in addressing the inadequacies highlighted in the report by ensuring six of the 12 legislative reform recommendations come into fruition. The further six recommendations have not currently been addressed but are being considered by parliament. The current amendments are widely considered to be a substantial step closer to not only establishing equality within the workplace but also negating the existence of sexual harassment and the culture in which it exists.
A summary of some of the current amendments bought on by the six reforms referred to above include:
- The scope of the Sex Discrimination Act 1984 has been widened to include professions not previously bound by the legislation. The Act is now extended to include members of parliament, judges and all state and territory public employees.
- The time frame to make a complaint of sexual harassment has increased from six months to 24 months. This means a complainant will now have 24 months to lodge a complaint with the Australian Human Rights Commission. This change reflects a better knowledge and understanding of delayed complaints and the reasons for why complainants are not reported initially (or soon thereafter).
- The concept of “worker” has been extended to incorporate all workers whether paid or unpaid. This has led to protection for categories of “workers” who were previously excluded under the Sex Discrimination Act 1984, such as volunteers.
- Sexual harassment in the workplace is now viewed as unlawful conduct, including the fact that sexual harassment, based on the gender of an employee, has now become grounds for termination of employment under the Fair Work Act 2009.
- Matters relating to sexual harassment within the workplace can now be considered in both civil and criminal jurisdictions. This allows for any person, who suffers any threat or retaliation due to making a complaint to the Australian Human Rights Commission, can now make a civil claim as a result of such threat or retaliation.
- The Fair Work Commission can now make orders to stop sexual harassment in the workplace. These orders provide a quick and financially viable option for workers to address inappropriate conduct and are considered similar to the ‘stop bullying orders’ which the Fair Work Commission currently issues. The stop sexual harassment application for orders will come into effect on 21 November 2021.
Impact of the changes and action items for organisations
The implementation of the Respect@Work Amendments Act, and its flow-on effect, is a huge leap for Australia in changing perceptions and acceptance of sexual harassment to align with community and social expectations. The changes have been notably welcomed within workplaces in Australia and while arguably long overdue, reflect and acknowledge the recommendations made within the comprehensive Respect@Work Report.
Importantly, recognition of the impact that sexual harassment has on victims is reflected in these changes, for example through the extension of reporting timeframes. This is evidence of the growing understanding of the negative effect that sexual harassment has on individuals, particularly women, within Australia.
Organisations will need to consider implementing effective education and training programs to ensure all employees are aware and understand their roles, responsibilities and rights in relation to sexual harassment in the workplace. Importantly, this will include the need to educate managers on what their responsibilities are in dealing with sexual harassment (specifically to be in line with the new legislation).
Another important action for organisations is taking steps to ensure that there are appropriate and effective avenues for employees to speak up if they have experienced or witnessed sexual harassment within the workplace. The co-existence of a workplace culture that does not tolerate sexual harassment along with avenues to speak up and be heard is a critical driver in ensuring that the new amendments have their intended effect: creating a safer workplace for ALL Australians and eradicating the long-standing issue of sexual harassment in the workforce.