The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect at Work Act) has made a number of changes to the Fair Work Act 2009 (FW Act). The overarching purpose of the amendments is to “enhance the effectiveness of Australia’s legal and regulatory frameworks in preventing and responding to sexual harassment”.
Special Counsel Monica Drivas, MBA Lawyer’s Special Counsel on Employment Law and Industrial Relations breaks down the issue.
New Sexual Harassment ‘Stop Orders’
From 11 November 2021, the Fair Work Commission (FWC) can make ‘stop sexual harassment orders’ against one or more individuals who “sexually harass“ a worker by:
- making an unwelcomed sexual advance, or an unwelcomed request for sexual favours, to the person harassed; or
- engaging in other unwelcome conduct of a sexual nature in relation to the person harassed,
in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
This is an extension of the FWC’s existing powers to make ‘stop bullying orders’. The provisions concerning sexual harassment ‘stop orders’ are found under PART 6-4B of the FW Act.
Importantly, when considering whether to make an order to prevent further sexual harassment and what the terms of the order would be, the FWC must take account of:
- whether a worker has been “sexually harassed” at work by another worker or by another individual (such as a customer, contractor or supplier of the employer);
- whether there is a risk that the worker will continue to be sexually harassed at work by that individual or those individuals;
- any final or interim outcomes arising out of an investigation into the matter that is being undertaken by another person or body;
- any procedures available to the worker to resolve grievances or disputes;
- any final or interim outcomes arising out of any procedures available to the worker for resolving grievances or disputes, and
- any matters that the Commission considers relevant.
Unlike stop bullying orders (where there must be repeated bullying behaviour towards a worker), a single act of sexual harassment may constitute sufficient grounds for the FWC to make an order if deemed appropriate.
The entitlements to compassionate leave prescribed under s. 104 of the FW Act has been amended to enable employees to take up to two days of paid compassionate leave (unpaid for casuals) in instances where:
(a) a baby in their immediate family or household was stillborn;
(b) the employee had a miscarriage; or
(c) the employee’s current spouse or de facto partner had a miscarriage.
Dismissing Employees for Sexual Harassment
The unfair dismissal provisions of the FW Act (specifically s.387) has been amended to expressly provide that sexual harassment can be held to be a valid reason for an employee’s dismissal for the purpose of the FWC determining whether a dismissal was harsh, unjust or unreasonable.
Additionally, the meaning of ‘serious misconduct’ prescribed under regulation 1.07 of Fair Work Regulations 2009 was amended to include sexual harassment as a ground for employment to be terminated immediately and without a notice period (or payment in lieu of notice).
Recommendations for Employers
Employer should consider reviewing current policies, training and complaints management processes to ensure that they adequately communicate the above changes to employees including:
- the type of conduct that constitutes sexual harassment;
- the type of conduct that will not be tolerated in the workplace;
- the employer’s grievance or dispute resolution procedures;
- the type of support the employer offers the sexual harassment complainant;
- the employer’s disciplinary procedure (including that an employee may be instantly dismissed on the basis of sexual harassment); and
- the new entitlement to miscarriage leave.
Additionally, employers may want to consider updating employment contracts to make clear that sexual harassment can be grounds for employment termination (including summary dismissal).
Contact our expert Employment and Workplace Relations team for assistance with all your employment and policy review needs.
The information in this publication is of a general nature and is not intended to address the circumstances of any specific entity or individual. Although MBA Lawyers endeavours to provide accurate and timely information, no guarantee is provided that the information is accurate at the date it published or that it will continue to be accurate in the future.