New Sex Discrimination and Respect at Work Legislative Changes

Provisions in the Fair Work Act 2009 (Cth), the Sex Discrimination Act 1984 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) were amended on 11 September 2021 with the passing of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth).

Some of the key amendments are:

Fair Work Act 2009 (Cth)

Compassionate Leave

The amendments provide another ground of entitlement for two days of compassionate leave where the employee, or the employee’s spouse or de facto partner, has a miscarriage.

The legislation already provides compassionate leave to an employee in circumstances of a stillborn child in the employee’s immediate family or employee’s household.

Compassionate leave is paid leave for employees except for casuals where the leave is unpaid.

Unfair dismissal

A new note has been inserted into the unfair dismissal provisions to clarify that if the dismissed person sexually harassed another person in connection with the person’s employment, that conduct can amount to a valid reason for the dismissal. This is to deal with an apparent inconsistency in some of the unfair dismissal decisions where dismissal for sexual harassment was not found to be a valid reason for dismissal.   

Stop sexual harassment orders

The amendments also introduce the ability for a worker to apply to the Fair Work Commission for an order to stop sexual harassment.

To make an order, the FWC needs to be satisfied that the worker has been sexually harassed at work by one or more individuals and that there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals. This is very similar to the anti-bullying regime already in place but one key difference here is that the sexually harassing behaviour does not need to be repeated.

Fair Work Regulations 2009 (Cth)

Regulation 1.07 of the Fair Work Regulations 2009 (Cth) has been amended to include sexual harassment conduct in the meaning of ‘serious misconduct’.  

Sex Discrimination Act 1984 (Cth)

Harassment on the ground of sex

The amendments introduce a new definition of “harassment on the ground of sex”.

A person (Person A) harasses another person (Person B) on the ground of sex if:

• Person A engages in unwelcome conduct of a seriously demeaning nature towards Person B; and
• the conduct is such that a reasonable person, having regard to all the circumstances, would have anticipated the possibility that Person B would be offended, humiliated or intimidated; and
• the conduct is by reason of Person B’s sex, or a characteristic that appertains generally or is generally imputed to that sex.

The purpose of this new type of harassment is to fill in the gap between sexual harassment and sex discrimination.

The amendments make it unlawful for a person to sexually harass, or harass on the ground of sex, a person in an employment context. This includes harassment towards fellow workers, prospective workers and even third parties if the harassment occurs in connection with the third party being a worker.

Liability of persons involved in unlawful acts

The amendments also provide for liability of persons involved in unlawful acts. If a person causes, instructs, induces, aids or permits another person to do an unlawful act under the sexual harassment and harassment on the ground of sex provisions, for the purposes of this Act, it is deemed that they themselves have done the act.  

Australian Human Rights Commission Act 1986 (Cth)

Termination of a complaint

An amendment provides that for complaints relating to the Sex Discrimination Act 1984, the President of the Australian Human Rights Commission has discretion to terminate a complaint that was made more than 24 months after the alleged incidents occurred, which is contrasted to the time period of more than 6 months for any other case.   

If you would like more information about the legislative amendments, please contact our office on +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.