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On 2 September 2021, Federal Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021.

The legislation represents the Government’s response to the Sex Discrimination Commissioner’s Respect@Work Report, which was the culmination of an 18-month Inquiry and recommended 55 changes to the law to address sexual harassment in workplaces. 

What’s new?

The key legislative changes (due to take effect soon) include:

  • Broadening the scope of the Sex Discrimination Act 1984 (Cth) to protect more workers from sexual harassment, including interns, volunteers, self-employed workers, judges and their staff, state public servants, and members of parliament and their staff.
  • Confirming that civil claims can be brought for victimising conduct.
  • Extending the timeframe for lodging complaints with the Australian Human Rights Commission from 6 months to 24 months.
  • Expanding the anti-bullying jurisdiction of the Fair Work Act 2009 (Cth) to allow workers to seek orders to stop sexual harassment in the workplace.
  • Clarifying that sexual harassment is a valid reason for dismissal for the purposes of the unfair dismissal regime of the Fair Work Act 2009 (Cth).
  • Extending the existing entitlement in the Fair Work Act 2009 for two days paid compassionate leave (or 2 days unpaid leave for casuals) to cover circumstances where an employee, or the employee’s current spouse or de facto partner, has a miscarriage.

What’s missing?

The legislation incorporates only 6 of the 55 recommendations of the Respect@Work Report.

A key recommendation of the Report that does not feature in the legislation is the introduction of a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation in their workplaces as far as possible.

A significant failing of the current legislative scheme is that the onus is placed on victims to complain and seek redress for the harm they have suffered from sexual harassment, rather than placing a positive obligation on employers to prevent that harm from occurring in the first place. 

A positive duty requirement would require a proactive and continuous examination of the cultural and systemic factors within workplaces that foster sexual harassment, such as gender inequality, power imbalances, and the underrepresentation of women in leadership.

The failure to adopt this recommendation represents a missed opportunity to enact real change that could help address the prevalence of sexual harassment in Australian workplaces.

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