This article was written by Philip Willox, Ruth Rosedale & Holly Gretton
The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (the Act) commenced operation on 10 September 2021. The Act implements 6 of Sex Discrimination Commissioner, Kate Jenkins’, 55 recommendations contained in the [email protected] Report released in March 2020, including amendments to the Australian Human Rights Commission Act 1986 (AHRC Act), Sex Discrimination Act 1984 (Sex Discrimination Act) and the Fair Work Act 2009 (Fair Work Act).
One of the key changes to the Fair Work Act is the introduction of a new anti-harassment jurisdiction.
From 11 November 2021, the Fair Work Commission (FWC) will be able to stop sexual harassment against employers or individuals. The order to stop sexual harassment will give the FWC the power to make any order it considers appropriate, for example the granting of an injunction or compensation.
This article focuses on:
- the introduction of the new anti-harassment jurisdiction;
- the introduction of a definition of sexual harassment; and
- confirmation that sexual harassment is a form of serious misconduct and may be a valid reason for dismissal.
How is this relevant to you?
The Fair Work Act amendments do not change the existing employment obligations of employers in respect of sexual harassment. However, for the first time they clearly frame what conduct is considered to constitute sexual harassment under the Fair Work Act and provide a new avenue for redress for complainants.
Employers should use the changes to ramp up a culture of top down zero tolerance to sexual harassment by ensuring meaningful and effective employment and WHS policies and practices are in place including:
- updating work systems and practices;
- carrying out confidential workplace surveys; and
- organising formal training for workplace leaders on the nature, drivers and impacts of sexual harassment in the workplace.
Employers can expect to see increased expectations as to proactive steps and continued scrutiny on responses to workplace sexual harassment both internally and from external stakeholders and commentators.
Stop sexual harassment orders
The introduction of a new anti-harassment jurisdiction will allow the FWC to make orders to stop sexual harassment in the workplace. This will operate similarly to the stop bullying jurisdiction introduced in 2014.
Unlike bullying, sexual harassment does not necessarily need to be a repeated behaviour in order for a stop sexual harassment order to be made. A one off incident of sexual harassment may be serious enough to amount to serious misconduct and accordingly a stop sexual harassment order can be made.
Employers will have obligations to respond to an application to stop bullying or sexual harassment (or both) within 7 calendar days after the day on which the application is served. However, it will be optional for the person who is named in an application as having engaged in bullying or sexual harassment to lodge a response.
The FWC has sought feedback on proposed changes to its Rules which are largely administrative amendments designed to accommodate the new anti-harassment jurisdiction. Feedback is also sought on the draft Benchbook on orders to stop sexual harassment, which explains what sexual harassment in the workplace is, who will be covered by the new regime and relevant case examples.
Who is covered?
As with stop bullying orders, a person can apply for a stop sexual harassment order if they:
- are a worker (as defined in the Work Health and Safety Act 2011 (Cth));
- are not a member of the Defence Force; and
- have experienced sexual harassment at work in a constitutionally-covered business (which includes a constitutional corporation, a Commonwealth authority and business or undertaking).
The FWC can only make an order if it is satisfied there is a risk that the worker will continue to be sexually harassed by the relevant individual or individuals so that there is a risk of future harm. The worker must also reasonably believe that they have been sexually harassed at work and must have a rational basis for the holding their belief. While there is no requirement for the behaviour to be repeated, whether a single incident will constitute sexual harassment depends on the ‘nature or quality of the action or statement’.
Definition of sexual harassment
The Fair Work Act now has the same definition of sexual harassment as the Sex Discrimination Act being:
- where a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours to the person harassed; or
- where a person engages in other unwelcome conduct of a sexual nature in relation to the person harassed,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
The draft Benchbook explains these concepts further, including that whether there has been a sexual advance, a request for sexual favours or other conduct of a sexual nature is a question of fact but may include sexually suggestive comments or jokes, sexually explicit pictures, posters or gifts and sexually explicit emails, SMS or social media. The reasonable person test is an objective test and the reasonable person is assumed to have some knowledge of the personal qualities of the person harassed.
Work health and safety (WHS)
The FWC has made it clear it is not necessary for a worker to establish a risk to health and safety when seeking an order to stop sexual harassment. This is different to bullying where a risk to health and safety as a result of the bullying behaviour must be established.
Sexual harassment may be serious misconduct and a valid reason for dismissal
The Fair Work Act sets out the factors it must take into account when considering whether a dismissal is harsh, unjust or unreasonable. One of the factors is whether there is a valid reason for the dismissal. The Fair Work Act has been amended to explicitly state that sexual harassment is a valid reason for dismissal. Prior to this amendment it was already understood that the broad application of serious misconduct would include sexual harassment, however, the changes have made that clear.
More broadly in relation to [email protected], another major change under the Fair Work Act is that full-time and part-time employees are entitled to two days of paid compassionate leave, and casuals will be entitled to two days of unpaid leave, if the employee, the employee’s spouse or de facto partner has a miscarriage. Employees are also entitled to compassionate leave if they experience a stillbirth or death of a child.