The “Respect at Work” legislation (Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth)) took effect on 10 September 2021, focusing on sexual harassment in the workplace and extending compassionate leave entitlements to include miscarriage. The legislation amended relevant provisions in multiple pieces of existing legislation, including the Fair Work Act 2009 (Cth) and the Sex Discrimination Act 1984 (Cth).
The legislation was introduced after the Australian Human Rights Commission (AHRC) conducted surveys between 2013 and 2018 on the experience of sexual harassment, and found that almost 2 in 5 women and 1 in 4 men experienced sexual harassment in the workplace in the previous 5 years. Those surveys then led to a National Inquiry into Sexual Harassment in Australian Workplaces, which identified that this was such a significant issue because it costs employers through:
- lost productivity
- staff turnover
- negative impact on workplace culture
- resources associated with responding to complaints, litigation and workers’ compensation
- reputational damage
What is sexual harassment?
Sexual harassment is defined as any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature in relation to the person harassed in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
Sex-based harassment (that is, harassment on the ground of sex) is now an express form of unlawful conduct (just like bullying), and may include:
- asking intrusive personal questions based on a person’s sex
- making inappropriate comments and jokes to a person based on their sex
- displaying images or materials that are sexist, misogynistic or misandrist
- making sexist, misogynistic or misandrist remarks about a specific person
- requesting a person to engage in degrading conduct based on their sex
A person who is threatened or subjected to sexual harassment can make a civil claim – in addition to any criminal proceedings which may be initiated by the Australian Federal Police.
The time for making a complaint under the Sex Discrimination Act 1984 (Cth) has been extended from 6 months to 24 months since the unlawful discrimination took place.
Sexual harassment can now be a valid reason for dismissal when determining whether a dismissal was harsh, unjust or unreasonable.
Similar to the existing “stop bullying orders”, a person who considers that they have been sexually harassed can seek a “stop sexual harassment order” from the Fair Work Commission. The Commission must firstly be satisfied that the harassment has occurred and that there is a risk of future workplace harassment.
Compassionate leave has been extended to include miscarriage for the employee, or the employee’s spouse or de facto partner. This includes stillbirth, infant deaths and premature births.
Contact Shire Legal if you would like assistance with training employees on the laws regarding sexual harassment in the workplace.