The issue of sexual harassment in the workplace has dominated media coverage for much of early 2021. The handling of Brittany Higgins’ sexual assault complaint has highlighted the need for employers to have effective processes for managing allegations of sexual harassment and assault.
New sexual harassment laws are on their way as the Federal Government looks to implement the recommendations of Respect@Work report handed down by the Australian Human Rights Commission, which found that 33% of people who have been in the workforce in the past five years have experience sexual harassment. The Respect@Work report calls for the response to sexual harassment to shift from a reactive, complaints based approach to one which requires positive actions from employers and a focus on prevention.
In response, on 24 June 2021, the Federal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill). The Bill is intended to strengthen, simply and streamline legislative and regulatory frameworks that aim to eliminate sex discrimination and harassment in the workplace.
The Bill proposes to amend the Fair Work Act 2009 (Cth) (the FWA) and Sex Discrimination Act 1984 (Cth) (the SDA). One of the key amendments of the Bill will extend the existing anti-bullying jurisdiction in the FWA to enable the Fair Work Commission to make ‘stop orders’ in relation to sexual harassment. Similar to the anti-bullying regime, an employee will be able to apply to the Commission for these orders if the harassment has occurred and there is a risk it will occur again. Unlike an order to stop bulling, an order to stop sexual harassment only requires the conduct to have occurred once before an application can be made.
Another key amendment of the Bill will clarify that sex-based discrimination is prohibited under the SDA, as established in existing case law. Harassment on the grounds of sex will be defined as unwelcome conduct of a seriously demeaning nature by reason of the person’s sex, in circumstances in which a reasonable person, having regard to all circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Essentially the Bill will prohibit harassment towards a person on the basis of sex, or on the characteristics that relate to a particular sex or on characteristics that society generally imputes to a particular sex.