On 2 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Amendment Act) passed Parliament. This legislative reform is part of the Government's response to a number of recommendations, including greater protections for unpaid workers or volunteers, outlined in the Australian Human Rights Commission’s (AHRC) Respect@Work Report.
The AHRC’s Respect@Work Report, released in 2020, made a suite of recommendations to simplify and clarify the overarching legal framework to ensure that government, employers, workers and the broader community are able to effectively address sexual harassment in the workplace.
By way of response to the Respect@Work Report recommendations, the Government’s Amendment Act has made important legislative changes to both the Sex Discrimination Act 1984 (Sex Discrimination Act) and the Fair Work Act 2009 (Fair Work Act). You can read the AICD’s submission on the Amendment Act here.
We take a closer look at what directors need to know.
Changes to the Sex Discrimination Act
- Express prohibition on sex-based harassment: It is now expressly clear under the Sex Discrimination Act that it is unlawful to harass a person on the basis of their sex. While sex-based harassment is already prohibited under the Sex Discrimination Act, people can experience harassing conduct based on their sex without it being sexual in nature. Such behaviour might include, for example, asking intrusive personal questions based on a person’s sex, or making sexist comments or jokes about a person based on their sex;
- Extension of protections to unpaid workers: Sexual harassment protections under the Sex Discrimination Act now extend to all paid and unpaid workers, including volunteers, interns, apprentices and self-employed. This is a critical and overdue reform. The AHRC’s National Inquiry heard reports of systemic issues for volunteers experiencing sexual harassment throughout the NFP sector – caused, in part, by the lack of clear and nationally consistent legal rights for volunteers. These reforms still however leave many volunteers without protections and do not extend to individuals volunteering at ‘volunteer associations’ (organisations that do not have any employees).
- Extension of coverage to public servants: The Sex Discrimination Act now applies to all complaints by, and against, members of State and Federal Parliament, their staff, judges and state and territory public servants.
- Permitting sexual harassment to occur unlawful: Any person who ‘causes, instructs, induces, aids or permits’ someone else to engage in sexual harassment, or sex-based harassment, can now also be found to have engaged in the unlawful conduct under the Sex Discrimination Act. For example, this type of conduct might occur where a supervisor is informed that a junior employee is harassing another employee on the basis of their sex and does not take any action, but instead jokes about or encourages the conduct. In these circumstances, the supervisor may be held liable as an accessory to the harassment for permitting its continuation.
- Victimisation conduct is now illegal: Victims of sexual harassment and bystanders, such as witnesses, can be subject to victimisation conduct – such as retaliatory action, or the threat of such action, because they made a complaint of sexual harassment. It is now clear under the Sex Discrimination Act that victimising conduct can form the basis of a civil action for unlawful discrimination, in addition to a criminal prosecution. For more discussion of obligations to prevent victimisation conduct, see Clayton Utz Report on Sexual Harassment in the Workplace (commissioned by the AICD).
- Extended timeframe to make complaints of sexual harassment: The timeframe for complainants to make complaints of sexual harassment misconduct to the AHRC, before the complaint may be terminated, has been extended from six months to 24 months after the alleged conduct took place.
Changes to the Fair Work Act
- Sexual harassment a valid reason for dismissal: Sexual harassment misconduct in connection with employment will be expressly recognised as a valid reason for dismissal in determining whether a dismissal from employment was harsh, unjust or unreasonable.
Sexual harassment ‘stop orders’: An employee who is subject to sexual harassment may now apply to the FWC to issue a 'stop sexual harassment order', equivalent to the currently available 'stop bullying order'.
A new positive duty for employers?
The Government has also signalled in its formal response to the Respect@Work Report, Roadmap for Respect, to consider remaining recommendations that have not been reflected in the Amendment Act. This may include Recommendation 17 to introduce a new positive duty for all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation in the workplace, as far as possible.
A positive duty to take reasonable and proportionate measures to prevent sexual harassment in the workplace is legislated in Victoria’s Equal Opportunity Act 2010 (Vic). This duty takes into account a number of factors to be weighed in relation to what is ‘reasonable and proportionate’ in the circumstances (for example, the nature and size of the organisation, resources available and practicability/cost of the measures).
At the Federal level, however, the Sex Discrimination Act does not currently impose positive duties on employers to take steps to prevent sexual harassment. Instead, employers may be vicariously liable for sexual harassment by an employee or agent, where the sexual harassment occurred ‘in connection with’ the employee’s employment or agent’s duties.
The AHRC National Inquiry found that existing laws do not however place sufficient obligations on employers to prevent sexual harassment. The question of whether an employer is vicariously liable for the actions of its employees only arises after sexual harassment has already taken place and an individual complaint has been made.
Accordingly, the AHRC heard significant support during its National Inquiry for the introduction of a freestanding positive duty requiring employers to take proactive measures to prevent sex discrimination and sexual harassment in the workplace. Importantly, these measures would be in line with existing proactive duties under WHS laws to eliminate or minimise risks arising from work, including sexual harassment.
We discuss directors’ obligations to prevent workplace sexual harassment under WHS laws and Safe Work Australia’s guidance further here.
Question for directors
These reforms are an important reminder for directors of the important oversight obligations which boards play with respect to preventing workplace sexual harassment. Now is a good time to review the adequacy of existing organisational policies, frameworks and risk identification mechanisms to ensure alignment with these recent law changes. With the extension of protections to volunteers, this is of particular importance for NFP organisations.
Some questions for directors to consider include:
Do you have an adequate policy on preventing workplace sexual harassment? Does this reflect the now express prohibition on sexual and sex-based harassment?
Does your policy expressly cover all paid and unpaid workers, including volunteers, interns and apprentices?
Is your policy clear that ‘causing, instructing, inducing, aiding or permitting’ someone else to engage in sexual harassment, or sex-based harassment, is unlawful conduct and will not be tolerated?
Is your policy clear that victimising conduct, including retaliatory action or threats, is unlawful and may give rise to both a civil and criminal action?
Does your policy include details of all the options available for complainants of sexual harassment misconduct? Does this include detail of a complainant’s access to the Fair Work Commission’s ‘stop sexual harassment orders’ and new timeframe for complaints to made to the AHRC?
As part of the AICD’s program of work on the board’s role in effectively addressing workplace sexual harassment, the AICD has commissioned a report by Clayton Utz to provide a practical roadmap of the relevant board-level and legal considerations for effectively responding to workplace sexual harassment.