Summary of the changes

The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth), also known as the Respect at Work Act, commenced on 11 September 2021 – except for the provisions covering “stop sexual harassment orders”, which will commence on 12 November 2021.

The following are the main changes:

  • Expansion of the application of the Sex Discrimination Act: The protection from sexual harassment under the Sex Discrimination Act 1984 has been expanded to include some workers not previously covered such as interns, volunteers, and self-employed workers. The definitions of “Persons Conducting a Business or Undertaking” (PCBU) and “workers” used in workplace health and safety legislation are adopted. 
  • Prohibition on sex-based harassment: The Sex Discrimination Act now prohibits “sex-based harassment”, defined as unwelcome conduct of a seriously demeaning nature due to a person’s sex, in circumstances which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimated. Both employers and employees (eg supervisors who allowed the conduct to occur) can be held vicariously liable.
  • Victimisation: Victimisation, such as threatening or subjecting a person to detriment for taking action such as lodging a complaint, can now form the basis of a civil action for unlawful discrimination (in addition to a criminal complaint) under the Act.
  • Complaints: The time limit for lodging complaints of discrimination to the Australian Human Rights Commission is increased from six to 24 months after the conduct occurred.
  • The Fair Work Act 2009 is amended to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was unfair. The definition of “serious misconduct” in the Fair Work Regulations is also amended to include sexual harassment. 
  • Stop Sexual Harassment Order: The existing anti-bullying jurisdiction in the Fair Work Act has been extended to also cover sexual harassment, meaning the Fair Work Commission can make an order to stop sexual harassment in the workplace (preventative rather than monetary).
  • Unfair Dismissal: The Fair Work Act has been amended to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust, or unreasonable. The definition of ‘serious misconduct’ in the Fair Work Regulations has also been amended to include sexual harassment. 
  • Miscarriage leave: Women who experience a miscarriage, and their current partners, now have access to up to two days of compassionate leave. 

Guide to complying with the changes

The Respect@Work Employer Guide is a practical guide jointly released by Australian Business Industrial and the Australian Chamber of Commerce and Industry. As well as explaining the legal changes in detail, it sets out clearly what businesses need to do – both to adapt to the changes and to ensure they stay compliant thereafter. 

The actions employers need to take are summarised under the following broad headings:

  • Review and update policies and procedures, eg social media, “out of hours” conduct, communications to employees.
  • Ensure all staff, particularly senior management, are aware of the changes.
  • Review and update training programs, plus conduct refresher training.
  • Review and update internal complaints policies and procedures in accordance with the changes.
  • Take positive steps to prevent sexual harassment and sex-based harassment in your workplace.
  • Update leave policies to add miscarriage leave.

How the guide helps employers

In addition to explaining in detail how to undertake all the steps listed above, there is a lot of new terminology businesses need to get their head around.

The guide includes the following:

  • Practical explanations of the meaning of various terms used and provisions, such as: who is covered, “sex-based harassment” and how it interacts with sexual harassment and sex discrimination, “seriously demeaning” conduct, “by reason of”, “vicarious” and “accessorial” liability, “victimisation”, “reasonable person” test, “reasonable steps”, “stop sexual harassment orders” and types of orders that can be made, “unfair dismissal”, “out of hours conduct”, “connection with employment” and “miscarriage leave”. 
  • The meanings are further clarified by the use of examples, multiple case scenarios, and summaries of past tribunal/court cases that have addressed specific issues.
  • If a worker complains to the Australian Human Rights Commission, the procedure for handling and resolving complaints is set out.

View the Respect@Work Employer Guide here.

Need some help?

Seek advice as soon as possible to ensure you are taking all necessary steps to meet your legal obligations. Contact Australian Business Lawyers & Advisors here.