By Justin Lillyman
In response to the recommendations of the Australian Human Rights Commission report, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, the Federal parliament has passed new legislation that will apply to all Australian workplaces.
The key legislation passed involved amendments to the Sex Discrimination Act 1984 (Cth) and Australian Human Rights Commission Act 1986 (Cth) as well as the Fair Work Act 2009 (Cth) and is set out below:
Sex Discrimination Act 1984 (Cth) and Australian Human Rights Commission Act 1986 (Cth)
- Equality of opportunity – there is a new object in the Sex Discrimination Act to make it clear that, along with the elimination of discrimination and harassment, this Act aims ‘to achieve, so far as practicable, equality of opportunity between men and women’.
- Sex based harassment now an express, new form of unlawful conduct – harassing conduct on the ground of sex will need to be sufficiently serious or sustained to meet the threshold of offensive, humiliating, or intimidating, as well as seriously demeaning.
- All paid and unpaid workers now expressly protected from sex based and sexual harassment – the scope of the Sex Discrimination Act has been broadened by adopting the concepts of ‘worker’ and ‘person conducting a business or undertaking’ from the model Work Health and Safety Act 2011.
- Victimising conduct can give rise to civil and criminal proceedings – this change clarifies that a person who is threatened or subjected to detriment (eg because they make a complaint to the AHRC) can make a civil claim under the Sex Discrimination Act.
- AHRC discretion to terminate complaint extended from six to 24 months – although there is no timeframe for complaints to be lodged with the AHRC, the AHRC President’s discretion to terminate a complaint has now been extended from six to 24 months.
- Ancillary or accessorial liability – the Sex Discrimination Act deems the conduct of a person who ‘causes, instructs, induces, aids or permits’ another person to do an unlawful act of discrimination to have engaged in that same conduct.
- Scope of Sex Discrimination Act extended – to include broadly, among other workers and entities, all members of State and Federal parliament, judges and their staff and consultants, as well as state and territory public servants.
Fair Work Act 2009 (Cth)
- FWC sexual harassment ‘stop orders’ – to give workers access to a fast, low cost, informal mechanism to deal with complaints, changes to the Fair Work Act will enable the FWC to make an order to stop sexual harassment in the workplace, as part of the FWC’s existing anti-bullying jurisdiction.
- Sexual harassment can be a valid reason for dismissal – the amendments make it clear that sexual harassment can be a valid reason in determining whether a dismissal was harsh, unjust or unreasonable.
- Miscarriage leave – the changes allow an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or employee’s current spouse or de facto partner, has a miscarriage.
Please contact REEFWA on (08) 9365 7510 or ReefWA@cciwa.com if you require assistance in managing any of these legislative changes within your workplace.