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Australia: Sex Discrimination and Fair Work

  • November 9, 2021

    On 2 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 was passed by both the Senate and the House or Representatives. Once it receives royal assent, it will operate to amend the following pieces of legislation:


    • the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act“).

    • the Fair Work Act 2009 (Cth) (“FW Act“).

    • the Sex Discrimination Act 1984 (Cth) (“SD Act“).


    In broad terms, the amendments to the above legislation are intended to enhance legal protects around sexual harassment and minimise any confusion or uncertainty around how existing legislation intersects on this point, in line with recommendations of the Australian Human Rights Commission report, “Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces”.

    The specific impacts of the Bill are set out below.



    In more detail


    AHRC Act


    Clarification that victimisation can form the basis of both a civil action and criminal complaint

    Under the AHRC Act, individuals are able to bring a complaint in circumstances where they allege they have been subject to “unlawful discrimination”. The AHRC Act defines “unlawful discrimination” as acts, omissions or practices that are unlawful under Federal anti-discrimination legislation (including the SD Act), including any conduct that is an offence under victimisation provisions contained in those Acts.

    If the complaint to the AHRC is terminated, an affected person may make an application to the Federal Court or the Federal Circuit Court about the same, or substantially the same, alleged unlawful conduct.

    Prior to 2011, it was accepted that the Federal Court and the Federal Circuit Court had jurisdiction to hear applications related to victimisation, whether they were brought as a civil or a criminal claim under the AHRC. However, since 2011, judicial comments have given rise to legal uncertainty around whether either such Courts have jurisdiction to hear an application relating to an act of victimisation brought as a civil claim under the AHRC Act. This is because the victimisation provisions under the Federal anti-discrimination legislation (including the SD Act) are criminal in nature.

    The Bill will amend the SD Act to include new non-criminal victimisation provisions. Further, the specific reference to s. 94 of the SD Act in the definition of “unlawful discrimination” under the AHRC Act will be removed. The intent of these amendments is to clarify that victimisation can form the basis of both a civil or criminal action for unlawful discrimination.

    Amendment of the grounds on which the President may terminate a complaint

    The Bill will amend section 46PH(1)(b) of the Act, which provides that the President of the AHRC may terminate a complaint made under the AHRC Act it if was lodged more than six months after the alleged incident to which it relates. The Bill extends this period to 24 months in respect of complaints related to the SD Act, reflecting a recommendation in the Respect@Work Report to reduce procedural barriers arising from complainants being delayed in making a complaint.

    FW Act


    New “Stop Sexual Harassment” Rights

    The Bill amends Part 6-4B, which currently allows workers who have been bullied at work to apply to the FWC for an order to stop bullying, to extend these protections to employees who have been sexually harassed (as that term is defined under the SD Act) at work.

    The Bill defines sexual harassment at work as arising where a worker is sexually harassed by one or more individuals whilst at work in a constitutionally-covered business. As with the existing “stop bullying” jurisdiction:


    • a single incident of sexual harassment will be sufficient to attract a right to seek “stop harassment” orders;

    • the FWC must be satisfied that the harassment has occurred to make an order; and

    • orders would not be available in cases where there is no risk of harassment occurring again.


    These amendments will not take effect until two months’ after the commencement date of the Bill. The reason for this delay is to give the FWC time to prepare for the new laws. However, a worker can make an application for relief regardless of whether the sexual harassment occurred before, at or after the commencement of the amendments.

    Extension of circumstances in which compassionate leave may be taken to include miscarriage

    The Bill also amends s. 104 of the FW Act, which sets out an employee’s minimum entitlement to compassionate leave. The Bill extends the circumstances in which compassionate leave can be taken to include miscarriage, defined as “a spontaneous loss of an embryo or fetus before a period of gestation of 20 weeks“, provided that the miscarriage does not result in a stillborn child (as defined at section 77A(2) of the FW Act). This will enable 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. It is noted that the FW Act already allows for an employee to access compassionate leave in the event of a stillbirth, as well as potentially access parental leave.

    Unfair dismissal law clarification regarding sexual harassment

    In respect of unfair dismissal, the Bill inserts a note into s. 387 of the FW Act expressly stating that when considering whether there was a valid reason for the dismissal of a person related to their capacity or conduct, the fact that a person has sexually harassed another person in connection with their employment can amount to a valid reason for dismissal.

    SD Act


    Expanding the objects of the legislation

    The objects clause of the SD Act will be amended to include the objects of:


    • eliminating, so far as is possible, not only discrimination involving sexual harassment but also (and specifically) “discrimination involvement harassment on the grounds of sex”.

    • to achieve, so far as practicable, equality of opportunity between men and women.


    Prohibition on harassment on the grounds of sex

    Harassment on the grounds of sex will also be expressly prohibited, including via amendments to s. 28B. The term will be defined at new clause 28AA, which will provide that a person harasses another person on the grounds of sex if:


    • by reason of their sex or a characteristic generally pertaining (or imputed) to their sex, the person engages in unwelcome conduct (including making a statement to a person, or in the presence of a person) which is of a seriously demeaning nature in relation to the person harassed; and

    • the person engages in such conduct in circumstances in which a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.


    This amendment is intended to clarify the existing case law, pursuant to which this type of harassment has been found to be unlawful under the SD Act.

    Expanding the application of the SD Act

    In addition, the application of the SD Act will be extended to members of parliament, members of the ACT and Northern Territory legislative assemblies and their staff, judges, staff and consultants employed under the Members of Parliament (Staff) Act 1984, state employees (including independent contractors) and the public authority of a State (as defined under the SD Act).

    Further, the SD Act will be amended to:


    • include new definitions of the term “worker” and “persons conducting a business or undertaking” (PCBU) (both of which will have the same meaning as in the Work Health and Safety Act 2011); and

    • provide that a person is a worker in a business or undertaking if they carry out work for a PCBU.


    The purpose of these amendments is to extend protection from sexual harassment to all paid and unpaid workers, including volunteers, interns and the self-employed. On this point, it is noted that these protections already exist in some form under current work health and safety legislation, insofar as such legislation imposes obligations on PCBU’s to ensure, insofar as is reasonably practicable, a safe place of work.

    Victimisation

    Finally, the Bill will insert a new s.47A to the SD Act, which provides that it is unlawful to commit an act of victimisation (as defined at new s.47A(2)) against another person. This applies in addition to existing s. 94 of the SD Act, which makes it a criminal office to commit an act of victimisation against another person.

  • November 9, 2021
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