News update: Changes to the Fair Work Act and Sex Discrimination Act to commence shortly

On 2 September 2021, the Federal Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill).

The Bill implements a number of recommendations made by the Australian Human Rights Commission (AHRC) following a national inquiry into sexual harassment in Australian workplaces. The Bill will amend the Fair Work Act 2009 (Cth) (FW Act) as well as the Sex Discrimination Act 1984 (Cth) (SD Act) and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

A summary of the changes is below.

Changes to the FW Act

  • The anti-bullying jurisdiction of the Fair Work Commission (FWC), which currently allows the FWC to make orders to stop bullying in the workplace, will be expanded to allow the FWC to also make orders to stop sexual harassment in the workplace. As with applications for stop bullying orders, the FWC will need to be satisfied that harassment has occurred and that there is a risk that the harassment will occur again if it does not make the orders.
  • The unfair dismissal provisions of the FW Act will now include a legislative note to clarify the existing position at case law that a valid reason for dismissal can be the sexual harassment of another person in connection with that person’s employment.
  • The entitlement to compassionate leave in the National Employment Standards will be expanded to enable an employee to use the entitlement if the employee (or the employee’s current spouse or de facto partner) has suffered a miscarriage.

Changes to the SD Act and the AHRC Act

  • The object of the SD Act will be updated to include, in addition to the elimination of discrimination and harassment, an aim to achieve, so far as practicable, equality of opportunity between men and women.
  • A new provision will be inserted into the SD Act to make it expressly clear that it is unlawful to harass a person on the ground of their sex. This provision clarifies the existing position at case law.
  • The provisions of the SD Act which expressly prohibit sexual harassment at work will be amended to ensure that they align with terms in the model work health and safety (WHS) laws, broadening the scope of persons who will be protected under the SD Act.

The model WHS laws already impose duties on employers and persons conducting a business or undertaking (PCBU) to ensure that “workers” are not exposed to health and safety risks, including the risk of sexual harassment.

The new provisions of the SD Act will adopt the WHS concepts of “PCBU” and “worker” to ensure that persons who were not previously covered by the SD Act (but are protected by WHS laws), such as interns, volunteers, and self-employed workers, will now also be covered by the SD Act.

  • The scope of the SD Act will now also extend to members of Parliament, their staff and judges at all levels of government, as well as state and territory public servants.
  • The ancillary liability provisions of the SD Act will be extended so that a person who causes, instructs, induces, aids or permits someone else to engage in sexual harassment (or sex-based harassment) may now also be found to have engaged in the unlawful conduct.
  • The Bill will clarify the existing position at case law that victimising conduct, which is conduct that threatens or subjects to detriment a person who makes a complaint to the AHRC or otherwise asserts their rights under the SD Act or AHRC Act, can form the basis of both a civil action for unlawful discrimination as well as a criminal complaint.
  • The AHRC Act will be amended to provide that a complaint can only be terminated at the discretion of the President of the AHRC if it is made more than 24 months after the alleged conduct took place. Currently, the AHRC Act provides that a complaint can be terminated by the President if it is made six months after the alleged conduct took place.

Lessons for employers

These changes will take effect when the Bill receives royal assent (expected shortly). It should also be noted that the changes to the FW Act in respect of the FWC’s power to make orders to stop sexual harassment will be implemented two months after the Act commences to allow the FWC time to adjust its processes.

In the meantime, employers should be taking steps to review their anti-discrimination, anti-harassment, and anti-bullying policies to ensure that they are consistent with these changes.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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