28 July 2021
On 24 June 2021, the Morrison Government released the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill). For more background on the lead up to the Bill, please see our previous article.
The Bill was introduced in response to the Australian Human Rights Commission (AHRC) ‘Respect@Work: A National Inquiry into Sexual Harassment in the Australian Workplace’ (Report) and has been referred to the Education and Employment Committee (Committee). The Committee is due to hand down its recommendation on 6 August 2021.
The Bill proposes to amend federal laws to clarify and simplify the current sex discrimination and sexual harassment laws in Australia in an attempt to combat the prevalence of sexual harassment in Australian workplaces. In addition, the Bill is intended to support meaningful cultural change in Australian workplaces in light of concerns about employer responses to sexual harassment and other forms of sex discrimination.
This article outlines the proposed changes and the steps employers should consider in responding to these proposed changes.
The Bill proposes amendments to the Fair Work Act 2009 (Cth) (FW Act), Sex Discrimination Act 1984 (Cth) (SD Act) and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
The major changes proposed in the Bill include:
In addition to the above, the Bill also seeks to clarify and simplify current law through:
Despite proposing a number of key changes, the Bill did not include the following recommendations from the Report:
The Bill did not propose any additional powers for the AHRC. Thus, on one view, the enforcement of employer obligations remains ‘reactive’ and whether the reforms will be enough to bring about meaningful cultural change remains to be seen.
On 10 July 2021, the Fair Work Amendment (Respect at Work) Regulations 2021 (Regulations) came into operation. The Regulations adopt the recommendation in the Report that sexual harassment should be included in the definition of “serious misconduct” in the Fair Work Regulations 2009 (Cth).
If the Senate passes the Bill, the changes are likely to come into effect this year. Employers would therefore be well-served by taking steps to prepare for the new legislation.
As an initial step, employers should audit and identify gaps in their policies and procedures in preparation for compliance with the new requirements. The audit should include a review of ‘appropriate’ workplace behaviour policies and related workplace policies, including grievance handling policies, to assess whether they meet current statutory obligations and AHRC guidelines. Leave policies should also be reviewed to determine whether a miscarriage is included as a reason for compassionate leave and the potential impact to the business once this proposed change takes effect.
Secondly, a workplace culture founded on mutual respect and acceptable workplace behaviour is key to ensuring a safe workplace. Employers should now critically assess their current workplace culture to determine whether changes are required. This may include developing strategies to address and reduce the prevalence of workplace sexual harassment from the top down. The following are key questions for employers to consider during this process:
Holding Redlich can assist in providing advice on preparing for the proposed changes. If you have any questions or need assistance, please contact us.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.