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Respect@Work Bill tackles workplace harassment

Businesses may soon have to review their policies and training on sexual harassment and appropriate workplace behaviour. 

The Federal Government recently introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill into Parliament, which forms part of the government’s response to the Sex Discrimination Commissioner’s Respect@Work report.

The Bill was introduced into the Senate and immediately referred to the Senate Education and Employment Legislation Committee for inquiry and report by 6 August 2021. The Bill will likely be debated in Parliament during the August sittings.

The Bill seeks to make changes to the Fair Work Act (FW Act), the Sex Discrimination Act (SD Act) and the Australian Human Rights Commission Act

While the provisions of the Bill are not yet law, we would recommend that you put this on your radar as the changes have broad support from both sides of Parliament. 

Summary of key proposed changes 

1. Stop Sexual Harassment Order: The existing anti-bullying jurisdiction in the FW Act would be amended to allow the Fair Work Commission to make an order to stop sexual harassment in the workplace (preventative rather than monetary). Distinct from existing stop bullying orders, the conduct would not need to be repeated to qualify. 

2. Prohibition on Sex-Based Harassment: Sex-based harassment would be prohibited under the SD Act, which would be defined as unwelcome conduct of a seriously demeaning nature by reason of the person’s sex, in circumstances which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. This is relevant to both employees, and employers who can be held vicariously liable for the conduct of their workers. Ancillary liability provisions will also apply, meaning, for example, a supervisor may be held liable as an ‘accessory’ to the sex-based harassment if they aided and permitted its continuation. 

3. Unfair Dismissal: The FW Act would be amended to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was ‘fair’. The government has also indicated that it will amend the definition of ‘serious misconduct’ in the FW Regulations to include sexual harassment. 

4. Expansion of Application of Sex Discrimination Act: The protection from sexual harassment under the SD Act would be expanded to include those not previously covered such as interns, volunteers, and self-employed workers.

5. Victimisation: The Bill would provide that victimising conduct (such as threatening or subjecting a person to detriment for taking action such as lodging a complaint) can form the basis of a civil action for unlawful discrimination (in addition to a criminal complaint) under the SD Act. 

6. Miscarriage Leave: The Bill would clarify that women who experience a miscarriage, and their partners, will have access to existing rights for up to two days of compassionate leave.

Once we have clarity on the likely form of the final legislation we will provide another update and commentary on ways of further managing risk in the workplace including how best to review any policies or training in relation to sexual harassment and appropriate workplace behaviour.

We will need to wait and see what the final form is once the politicians get their hands on the Bill but once again business will be dealing with yet another layer of regulation requiring a review of policies, procedures and practices.

The motivations behind this are laudable and uncontroversial. However, we will need to see how it plays out in practice, especially the demeaning conduct provisions. Businesses will likely need to police in far more granularity the language that can and cannot be used in the workplace than has been the case in the past.

Nigel Ward

CEO and Director, Australian Business Lawyers & Advisors

Nigel Ward is one of Australia’s leading advocates and practitioners in employee and industrial relations with more than 30 years of strategic business planning experience.

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