Reform To The Sexual Harassment Framework
Between September 2021 and December 2022, three key pieces of federal legislation to Australia’s sexual framework were enacted:
- Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, receiving royal assent on 10 September 2021 (Respect@Work Act 2021)
- Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, receiving royal assent on 6 December 2022
- Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, receiving royal assent on 12 December 2022 (Respect@Work Act 2022).
New obligations for Employers
Positive duty: Employers have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment, sex-based harassment, hostile work environments and certain acts of victimisation in the workplace. It covers employees, volunteers and contractors.
Reasonable and proportionate measures will vary and depend on:
- the size, nature and circumstances of the company
- the company’s resources, whether financial or otherwise the practicability and costs associated with the steps.
Extended liability for employers i.e. prohibits a person (including employers) from instructing, aiding or permitting someone else to engage in victimisation or harassment (e.g. sexual harassment, sex-based harassment and hostile work environments).
New protections for Workers
Two new types of harassment have been included:
- harassment on the grounds of sex i.e. unwelcome conduct which is demeaning in nature, on the basis of someone’s sex or a characteristic of that sex
- hostile work environments i.e. prohibits subjecting another person to a workplace environment that is hostile on the ground of sex.
Extended discrimination protections now provide specific protections for employees, prospective employees and contractors against adverse action being taken against them because of their gender identity, intersex status, or because they are breastfeeding.
Compassionate leave includes miscarriages have been extended to include miscarriages. Full-time and part-time employees can take up to two days of paid leave (unpaid for casuals) if the employee, their spouse or de facto partner has had a miscarriage.
Other Changes
- Sexual harassment is a valid reason for dismissal where sexual harassment is proven to have occurred.
- Victimisation a civil action under the SD Act.
Avenues for complaints
Workers can bring complaints through a number of avenues.
Australian Human Rights Commission (AHRC).
- Individuals have always been able to make a complaint concerning harassment and/or discrimination in the AHRC. The time limit for lodging a complaint in the AHRC has been increased to 24 months from when the conduct occurred. However, the AHRC can investigate and attempt to conciliate claims lodged outside the 24-month time limit. The AHRC also has extended powers to investigate a company’s positive duty compliance and into unlawful and systemic discrimination.
- Sexual harassment in connection to work is now expressly prohibited under the FW Act and employers can be held vicariously liable for sexual harassment. The time limit for a worker to bring a claim in the FWC is 24 months. An application for a stop sexual harassment order is directed towards preventing future harassment. The FWC will make an order where it is satisfied unlawful sexual harassment has occurred and the person will continue to be harassed. The FWC can make any preventative order considered appropriate (other than the payment of money).
State and Territory regulatory bodies
States and territories have their own regulatory bodies where individuals can bring harassment and discriminations claims under the relevant state or territory anti-discrimination legislation.
Source: Holding Redlich 14.06.2023
Akyra’s Key Takeaways
- Enhanced employer responsibilities: The legislation introduced a positive duty for employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, sex-based harassment, hostile work environments, and certain acts of victimisation in the workplace. Employers are now held liable for instructing, aiding, or permitting others to engage in harassment or victimisation.
- Expanded protections for workers: The legislation introduced new types of harassment protections, including harassment on the grounds of sex and protection against hostile work environments based on sex. Discrimination protections were extended to include gender identity, intersex status, and breastfeeding. Additionally, compassionate leave was expanded to include miscarriages.
- Strengthened avenues for complaints: Workers now have multiple avenues to bring complaints regarding harassment and discrimination. They can approach the Australian Human Rights Commission (AHRC) or the Fair Work Commission (FWC) within a 24-month time limit from when the conduct occurred. The AHRC has extended powers to investigate positive duty compliance and unlawful and systemic discrimination, while the FWC can issue stop sexual harassment orders to prevent future harassment.
Overall, the legislation aimed to improve workplace conditions, protect workers from discrimination and harassment, and empower individuals to seek appropriate remedies in case of violations.
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The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
