3 min read

Federal Government legislates for Respect@Work

As part of its principal response to the findings of Sex Discrimination Commissioner Kate Jenkins in the Inquiry into Sexual Harassment (Respect@Work), the Federal Government has introduced a Bill to make amendments to the Sex Discrimination Act 1984 (Cth) (SD Act) and the Fair Work Act 2009 (Cth) (FW Act).

The new legislation will make it clear that sex-based harassment is unlawful under the SD Act.

What is sex-based harassment?

Sex-based harassment would be defined as unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances in which, in line with the existing test for sexual harassment, a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.

The harassing conduct on the ground of sex would need to be sufficiently serious or sustained to meet the threshold of offensive, humiliating or intimidating, as well as seriously demeaning. Depending on the circumstances, this may include:

  • asking intrusive personal questions based on a person’s sex;
  • making inappropriate comments and jokes to a person based on their sex;
  • displaying images or materials that are sexist, misogynistic or misandrist;
  • making sexist, misogynistic or misandrist remarks about a specific person; and
  • requesting a person to engage in degrading conduct based on their sex.

Mild forms of inappropriate conduct based on a person’s sex are not of a sufficiently serious nature to meet the threshold of offensive, humiliating or intimidating, as well as seriously demeaning. For example, if a mechanic provided an overly simplistic and condescending explanation to a female client about the car repairs the mechanic had undertaken on her car, this would not meet the threshold of offensive, humiliating or intimidating simply because it was irritating for the female client.

Who would be liable and who would be protected?

The provisions that will make sexual harassment in the workplace unlawful adopt the concept of a person conducting a business or undertaking, which is used in work health and safety legislation in most Australian jurisdictions. This will capture sexual harassment and sex-based harassment that occurs between people who do not fall within the definition of employer and employee, but who nevertheless have a workplace relationship. Examples are interns, volunteers and people who are self-employed.

The worker will be protected under the new provisions even if the sexual harassment occurs at times or places when work is not actually performed e.g. attending a pub to continue a discussion begun at the principal workplace.

Currently a person who causes, instructs, induces, aids or permits another person to engage in sexual harassment would not be liable under the SD Act, unless they are also an employer. The amendments will mean that a person who causes, instructs, induces, aids or permits another person to engage in sexual harassment is also liable under the SD Act. For example, 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. Further, if an employee encourages a fellow employee to harass a person based on their sex, but does not engage in this conduct themselves, they may also be held liable as an accessory under this provision.

Currently, state and territory public servants are only covered by anti-discrimination legislation operating exclusively in their jurisdiction. The Bill will make the SD Act protections from workplace discrimination or harassment applicable to these employees. The scope of the SD Act extends to members of parliament, their staff, and judges at all levels of government.

Stop sexual harassment orders

The new legislation will amend the existing anti-bullying jurisdiction in the FW Act to make it clear that within that jurisdiction, the Fair Work Commission (FWC) can make an order to stop sexual harassment in the workplace. Workers who reasonably believe that they have been sexually harassed at work may apply to the FWC for an order to stop the sexual harassment in the same way as a bullied worker can seek an anti-bullying order. However, unlike bullied workers, the applicant will not need to show the sexual harassment was repeated or part of a pattern, and the application can be made in one-off cases. The applicant will also not need to show a risk to health and safety, given sexual harassment is a known and accepted work health and safety risk.

The sexual harassment needs to be ‘at work’. Like bullying, this can be when the worker is engaged in some other activity that is authorised or permitted by their employer, and include at work events and coffee breaks.

Entitlements under the amendments

The new legislation will amend the FW Act 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 new legislation will vary the existing entitlement to compassionate leave in the FW Act to enable an employee to take up to 2 days of paid compassionate leave (unpaid for casuals) if the employee, or employee’s current spouse or de facto partner, has a miscarriage. Miscarriage is defined as the spontaneous loss of the embryo or foetus before 20 weeks’ gestation.

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