The recent enactment of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) came into effect on 11 September 2021.
The new change made reforms to the Fair Work Act 2009 (Cth), the Australian Human Rights Commission Act 1986 (Cth) and the Sex Discrimination Act 1984 (Cth), ushering in changes regarding sexual harassment in the workplace.
Understanding these changes in the law is pivotal for employers.
Key amendments
Fair Work Act 2009 (Cth):
- Sexual harassment is now a valid reason for dismissal (subject to the facts), allowing employers to dismiss employees who engage in misconduct by sexually harassing other employees.
- Victims of sexual harassment can now apply to the Fair Work Commission for ‘stop orders’ preventing future harm where a risk of sexual harassment still exists in a workplace. The extent of a ‘stop order’ impact is yet to be seen since the regime does not come into effect until 11 November 2021.
- Employees are now entitled to two days of paid leave (unpaid for casuals) if they, their spouse or de facto partner has a miscarriage. Employers should be alert of their obligation to provide employees with miscarriage leave.
Australian Human Rights Commission Act 1986 (Cth):
- Victimising conduct’ is now a valid basis for civil actions concerning unlawful discrimination. Previously, this was only applicable to a criminal complaint under the Sexual Discrimination Act.
- The Australian Human Rights Commission’s discretion to terminate complaints under the Sexual Discrimination Act has been extended from 6 months after the alleged incident to now 24 months after the alleged incident.
Sexual Discrimination Act 1984 (Cth):
- The scope of the Act now extends to cover all members of State and Federal Parliament, as well as their staff, consultants, judges and public servants.
- Harassment based on sex is now expressly regarded as a form of unlawful conduct.
- All paid and unpaid workers are now protected from sexual harassment. This ensures the protection of volunteers, interns, apprentices and self-employed persons.
Action points for employers
Employers should:
- Review workplace policies and procedures to ensure they are up-to-date and compliant with the new reforms;
- Ensure that workplace conduct training and re-training on sexual harassment is provided to all employees; and
- Ensure managers are properly trained in effectively managing reports of sexual harassment and/or other inappropriate conduct.
How can Marsdens help?
If you are an employer who needs assistance with updating your policies or providing training, please contact Aaran Johnson or Simon Kumar on (02) 4626 5077 to discuss how Marsdens can assist your business.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
