Respect@Work legislative reforms

Review your policies, procedures and training ahead of proposed changes 3 min read

The Federal Government has proposed legislative changes to respond to the Australian Human Rights Commission's Respect@Work Report.

How does this affect you?

Employers should take the opportunity to consider whether their policies, complaints procedures, and training programs will need to be refreshed in light of the proposed changes set out below.

The Bill

The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill) was introduced on 24 June 2021. The Bill will amend the Fair Work Act 2009 (Cth) (FW Act) and the Sex Discrimination Act 1984 (Cth) (SD Act) to give effect to the Government's commitment to legislative reforms in the 'Roadmap for Respect' and extend compassionate leave entitlements to include miscarriage.

Changes to the FW Act include:

• Modifying the existing anti-bullying regime to enable workers to apply to the Fair Work Commission for an order to stop sexual harassment in the workplace. This measure operates in the same way as anti-bullying orders, to prevent future harm. An order can only be granted if the Commission is satisfied that sexual harassment has occurred and there is a risk of the harassment occurring again. In contrast to anti-bullying orders, repeated conduct is not required.
• Expressly stating in the unfair dismissal provisions that sexual harassment can be a valid reason for dismissal.
• Allowing employees who have a miscarriage (or their spouse or de facto partner) to access the minimum compassionate leave entitlement of two days' paid leave (unpaid for casuals).

Changes to the SD Act include:

• Prohibiting harassment on the ground of sex. 'Sex-based harassment' is defined as unwelcome conduct of a seriously demeaning nature towards the person harassed by reason of their sex in circumstances where a reasonable person would have anticipated that the person would be offended, humiliated or intimidated.
• Expanding coverage of the SD Act to interns, volunteers, self-employed workers, judges, and members of parliament and their staff at all levels of government. The existing exemption of state public servants will be removed to ensure that these workers are also protected.
• Extending the timeframe to make a complaint to the Australian Human Rights Commission from six months to 24 months after the alleged conduct occurred, to enable more historical complaints to be considered.

The Bill is currently before the Senate and is expected to pass when parliament returns from the winter recess in August. We will keep you updated about further developments.