2.1
This chapter provides context for the amendments contained in the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the bill) before providing an overview of the primary measures to be enacted.
Context of the bill
2.2
On 20 June 2018, the Sex Discrimination Commissioner, Ms Kate Jenkins, and the then Minister for Women, the Hon Kelly O'Dwyer MP, jointly announced the National Inquiry into Sexual Harassment in Australian Workplaces. The Australian Human Rights Commission (the AHRC) was funded by the Australian Government (the government) to undertake the inquiry and review and report on workplace sexual harassment. In particular, the AHRC was asked to make recommendations on:
its prevalence, nature and reporting in Australian workplaces;
its drivers, including risk factors for particular population groups or in different workplace settings;
the current legal framework;
existing measures to address it and examples of good practice; and
its impacts on individuals and businesses, including its economic impact.
2.3
The AHRC's report, Respect@Work: National Inquiry into Sexual Harassment in the Workplace (Respect@Work) was tabled in Parliament on 5 March 2020. The Respect@Work report concluded that existing legal and regulatory frameworks for addressing workplace sexual harassment are complex and difficult to navigate. The report included 55 recommendations, including legislative amendments to 'simplify and clarify the overarching legal frameworks to ensure that employers and workers are able to effectively address sexual harassment in the workplace'.
2.4
On 8 April 2021, the government announced its response to the Respect@Work report, entitled A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (Roadmap for Respect). The response set out the government's long-term commitment to preventing and addressing sexual harassment and building a culture of respect in Australian workplaces by agreeing to (in full, in part or in principle) or noting all 55 recommendations in the report.
2.5
In the 2021–22 Budget, the government provided more than $20.5 million to implement the Roadmap for Respect and respond to key recommendations of the report. This was in addition to the $2.1 million provided as part of the 2020 Women's Economic Security Statement to fund the establishment of the Respect@Work Council and to implement eight other recommendations from the report.
Overview of the bill
2.6
The bill would amend the Sex Discrimination Act 1984 (the SD Act), Australian Human Rights Commission Act 1986 (the AHRC Act), and the Fair Work Act 2009 (the FW Act) to implement the government's commitments in response to recommendations 16, 20, 21, 22, 29 and 30 of the Respect@Work report. The following sections provide an overview of the primary measures contained in the bill.
Clarifying the object of the SD Act
2.7
The bill would amend the object clause in the SD Act to make it clear that in addition to the elimination of discrimination and harassment, the SD Act aims 'to achieve, so far as practicable, equality of opportunity between men and women'. The Explanatory Memorandum (EM) noted that the 'amendment would ensure that the concept of equality of opportunity between men and women, in addition to the elimination of discrimination, underpins the operation of the SD Act'.
Prohibiting sex-based harassment
2.8
The bill would insert a new provision in Division 3 of Part II of the SD Act to clarify the existing protection that it is unlawful to harass a person on the ground of their sex. According to the EM:
The Respect@Work Report concluded that while sex-based harassment is already prohibited under the SD Act as a form of sex-based discrimination, this is not well understood. This amendment would merely clarify the existing case law, which shows that sex-based harassment can already be found unlawful under the SD Act.
2.9
The new provision would prohibit sex-based harassment where a person engages in unwelcome conduct of a seriously demeaning nature in relation to a person harassed because of their sex or a characteristic that applies to, or is generally associated with, people of that sex. This would apply where the person does so in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
2.10
The EM noted that the new provision would not 'capture mild forms of inappropriate conduct based on a person's sex that are not sufficiently serious in nature to meet the threshold of offensive, humiliating or intimidating, as well as seriously demeaning'.
Expanding coverage of the SD Act
2.11
The bill would simplify and amend the protection from workplace sexual harassment in the SD Act to align protections more closely in that act with the Work Health and Safety Act 2011 to ensure all paid and unpaid workers are protected from sexual harassment. The proposed amendments would:
adopt the concept of 'worker' and 'person conducting a business or undertaking' used in the model Work Health and Safety laws to ensure that persons not previously covered under the SD Act, such as interns, volunteers and those who are self-employed are protected from sexual harassment;
expand the definition of 'Commonwealth employee' to expressly include members of parliament, judges, staff and consultants employed under the Members of Parliament (Staff) Act 1984 and also introduce an equivalent definition of 'State employee'; and
remove the current exemption of state and territory public servants from protections for workplace discrimination and sexual harassment in the SD Act and make consequential amendments to ensure that state and territory employees are able to make a complaint in relation to their employer.
Ancillary liability
2.12
The bill would extend the coverage of the ancillary liability provision in section 105 of the SD Act so that a person who causes, instructs, induces, aids or permits another person to engage in sexual harassment or sex-based harassment can also be found liable for the unlawful conduct.
Clarifying that victimisation can be addressed as a civil and criminal matter
2.13
The bill would amend the SD Act to insert a new civil victimisation provision (section 47A) to make it explicit that any conduct that is an offence under section 94 of the SD Act can form the basis of a civil action for unlawful discrimination. The definition of 'unlawful discrimination' in the AHRC Act would also be amended to cover the new civil victimisation provision created by the new section 47A and the reference to the existing criminal offence would be repealed as a consequence.
2.14
The proposed changes would ensure that people who experience victimising conduct for the purposes of the SD Act would be 'able to make a complaint to the AHRC and, if their complaint is terminated, initiate civil proceedings in relation to "unlawful discrimination" under section 46PO of the AHRC Act'.
2.15
The amendments would also address the judicial uncertainty regarding the prohibition of victimising conduct under the SD Act that has arisen as a result of court cases that have 'questioned whether the Federal Circuit Court or the Federal Court has jurisdiction to hear a civil application of 'unlawful discrimination' under the AHRC Act that relates to victimisation'.
Extending the time period to make a complaint under the AHRC Act
2.16
The bill would amend the AHRC Act so that the President's discretion to terminate a complaint under the SD Act on the grounds of time – currently six months – would not arise until 24 months after the alleged unlawful conduct took place. The EM noted:
This extended time-period recognises that complaints initiated under the SD Act, including for sexual harassment, are sensitive in nature. As a result, it may be difficult for a person to lodge a complaint within six months of the incident/s occurring, particularly in circumstances where the person's mental health has been negatively affected, the person fears victimisation and/or lacks awareness about their legal rights and protections.
Availability of 'stop orders' in relation to sexual harassment within the FW Act
2.17
The bill would amend the existing anti-bullying jurisdiction of the Fair Work Commission (FWC) to clarify that a person who is sexually harassed at work may apply to the FWC for an order to stop the harassment.
2.18
Currently, Part 6-4B of the FW Act allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying. The bill would repeal subsection 789FF(1) and replace it with a new subsection that 'substantially replicates the existing subsection dealing with bullying and includes express provisions for sexual harassment to clarify that orders can be made to address sexual harassment in the workplace as well as bullying'.
2.19
The bill would also insert a new provision (subsection 789FD(2A)) which would 'provide that a worker is sexually harassed at work if, while the worker is at work in a constitutionally-covered business, one or more individuals sexually harass the worker'. The EM noted:
Sexual harassment that constitutes bullying behaviour is already covered by the existing Part 6-4B jurisdiction. However, there will be some modifications to how this part applies to sexual harassment. In particular, the jurisdiction can be enlivened on one occasion or instance of sexual harassment; this is appropriate as sexual harassment is not always repeated or continuous (new subsection 789FD(2A)).
2.20
The proposed stop orders 'would not be available in cases where there is no risk of harassment occurring again, for example when the person who harassed the worker is no longer employed at the workplace'.
Sexual harassment as a valid reason for dismissal
2.21
The bill would amend the FW Act to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal.
2.22
Section 387 of the FW Act sets out the factors the FWC must consider when considering whether a dismissal was harsh, unjust or unreasonable, including whether there was a valid reason for the dismissal related to the person's capacity or conduct, including its effect on the safety and welfare of other employees. The bill would insert a legislative note at the end of section 387 to inform readers that, for the purposes of paragraph 387(a), conduct that can amount to a valid reason for dismissal includes where an employee sexually harasses another person in connection with the employee's employment.
2.23
The government has also amended the definition of 'serious misconduct' in the Fair Work Regulations 2009 to include sexual harassment. This will clarify that this type of behaviour within the workplace can result in dismissal without notice.
Miscarriage leave
2.24
The bill would extend the existing entitlement to compassionate leave under the FW Act to enable an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or employee's current spouse or de facto partner, has a miscarriage.
2.25
Currently, the FW Act provides two days of compassionate leave to employees when a child is stillborn, where the child would have been a member of the employee's immediate family, or a member of the employee's household, if the child had been born alive. The bill would amend the FW Act to extend the existing entitlement to compassionate leave to national system employees if they, or their current spouse or de facto partner, has a miscarriage.
2.26
A new provision would also be inserted that would provide that compassionate leave in relation to miscarriage would not be available to an employee where the miscarriage results in a stillborn child (as this would be covered by existing provisions), or where their former spouse or former de facto partner has a miscarriage.
2.27
The existing notice and evidence requirements relating to compassionate leave in the FW Act would apply to employees taking compassionate leave in relation to a miscarriage.
Application and transitional provisions
2.28
The bill would provide for the retrospective application of the victimisation provisions in the proposed new subsection 47A(1). The bill would also provide transitional arrangements for victimisation complaints that are currently before the AHRC, that relate to conduct that occurred prior to commencement but are yet to be made, and that have been terminated by the AHRC prior to the commencement of the bill and are either before a court or are yet to proceed to court.
Compatibility with human rights
2.29
A statement on compatibility with human rights was prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The statement concluded that the bill 'is compatible with human rights because it promotes the protection of human rights and to the extent that it may operate to limit human rights, the limitations are reasonable, necessary and proportionate to achieve legitimate objectives'.
2.30
The Parliamentary Joint Committee on Human Rights considered the bill and did not have any comment.
Senate Standing Committee on the Scrutiny of Bills
2.31
When examining a bill or draft bill, the committee takes into account any relevant comments published by the Senate Standing Committee on the Scrutiny of Bills (the Scrutiny Committee). The Scrutiny Committee assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, and on parliamentary propriety.
2.32
The Scrutiny Committee considered the bill and did not have any comment.