In brief - Employers should be aware that the Sex Discrimination and Fair Work (Respect at Work) Amendment Act has made a number of changes to the Fair Work Act, including that the Fair Work Commission can now make orders to stop sexual harassment of workers

In the aftermath of several high-profile sexual assault and harassment cases coupled with ground swell caused by the #metoo movement, Kate Jenkins, the Sex Discrimination Commissioner submitted the Respect@Work report to the Federal Government on 29 January 2020, which examined the nature and prevalence of sexual harassment in Australian workplaces.

In response, on 2 September 2021, the Federal Government passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect@Work Act), which adopted six of the 55 recommendations from the Respect@Work Report of which included amendments to the Fair Work Act 2009 (Cth) (FW Act).

Key changes to the Fair Work Act 

The Respect@Work Act made several changes to the FW Act in relation to:

Fair Work Commission can make stop sexual harassment orders

As of 11 November 2021, the Fair Work Commission (FWC) can now make orders to stop the sexual harassment of a worker. Specifically, section 789FC(1) has now been amended to allow a worker who reasonably believes that he or she has been sexually harassed at work to apply to the FWC for a stop sexual harassment order.

If the FWC is satisfied that a worker has been sexually harassed by one or more workers and is satisfied there is a risk that the worker will continue to be sexually harassed, orders to stop sexual harassment can be made pursuant to section 789FF(1)(b)(ii). As opposed to a stop bullying order, the FWC only needs to find that sexual harassment occurred in a single instance for an order to be made, rather than a finding of repeated unreasonable conduct.

Similar to the stop bullying jurisdiction, the FWC is limited to the type of orders that can be made, which in effect are designed as a preventative measure to stop sexual harassment from continuing to occur, rather than punishing the worker by issuing pecuniary or compensatory orders.

Sexual harassment is a valid reason for dismissal

Despite the limitation of orders that can be made by the FWC, it does not prevent an employer taking appropriate disciplinary action. While sexual harassment has always been a valid reason for dismissal, the amendments to section 387of the FW Act empower employers to consider termination in the event of single incidents of sexual harassment. 

Further, underlining the seriousness of sexual harassment in the workplace, regulation 1.07 of the Fair Work Regulations 2009 (Cth) has been updated to indicate that sexual harassment in the workplace can constitute serious misconduct, amounting to summary dismissal without notice.

Miscarriage leave

The Respect@Work Act also amended section 104 of the FW Act to provide employees with two days of paid compassionate leave in circumstances where the employee or their spouse has suffered a miscarriage. Casual employees are provided with two days of unpaid compassionate leave in the same set of circumstances.

Key take aways for employers

To prepare for these reforms employers should review policies, training, complaints management processes and how they set expectations around behaviour in their workplaces to demonstrate positive steps towards preventing instances of sexual harassment.

Employers may want to revisit contracts and policies to update the definition of serious misconduct to specifically include sexual harassment. 

Employers might also want to communicate with staff about the new leave entitlements for miscarriage leave.

Where complaints can be made under this legislation in respect of conduct which occurred before the date of this reform, employers should revisit how previous allegations of sexual harassment were addressed. Some complainants might try to re-enliven those matters. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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