With a federal system of law, Australia has comprehensive legislative prohibitions against sexual harassment in every State and Territory jurisdiction, as well as at the federal level. Despite these laws, sexual harassment remains a pervasive problem.

In 2018, the Government funded the Australian Human Rights Commission (the AHRC) to undertake a landmark National Inquiry into Sexual Harassment in Australian Workplaces. The inquiry, jointly announced by the Sex Discrimination Commissioner, Kate Jenkins, and the Minister for Women, Hon Kelly O’Dwyer MP, was the first of its kind in the world.

The product of this inquiry – the Respect at Work Report – found that sexual harassment is a pervasive and widespread issue across Australian society, and that the existing system for addressing sexual harassment is complex and confusing for both workers and employers. The Report also provides a comprehensive set of 55 recommendations for addressing sexual harassment in the workplace. The central one contains an obligation for employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation “as far as possible”.

In June 2019, the International Labour Organisation (ILO) adopted the Violence and Harassment Convention No. 190, a global instrument on the elimination of violence and harassment in the world of work that covers particularly gender-based violence and harassment, including sexual harassment. The convention covers a range of unacceptable behaviours that ‘aim at, result in, or are likely to result in physical, psychological, sexual or economic harm’, and recognises that this can happen through work-related communications and technology as well as within a physical workplace.

On 24 July 2021, the Federal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill into Parliament, which seeks to give effect to some of the key recommendations of the landmark Respect@Work Report in relation to workplace sexual harassment.

The Bill implements certain recommendations of the Australian Human Rights Commission report, Respect at Work.

The changes employers should be aware of can be summarised as follow: 

1. Sexual Harassment is a ‘valid reason’ for dismissal: the Fair Work Act 2009 (FW Act) is amended, aligning with recent Fair Work Commission (FWC) decisions, including sexual harassment as a valid reason for dismissal. Similarly, the Bill amends the definition of ‘serious misconduct’ to include sexual harassment pursuant to the Fair Work Regulations 2009.
2. Stop Sexual Harassment Order: the existing section 789FF of the Fair Work Act 2009, which empowers the Fair Work Commission (FWC) to make any orders it considers appropriateto prevent a worker from being bullied, is extended to include prevention of sexual harassment. The Fair Work Commission can make an order to stop sexual harassment in the workplace through preventative measure rather than monetary sanctions. Distinct from existing anti-bullying orders, the conduct does not need to be repetitive to qualify.
3. Expansion of Application of Sex Discrimination Act: the protection from sexual harassment under the Sex Discrimination Act expands to include those not previously covered such as interns, volunteers, and self-employed workers. As such, this captures sexual harassment in any workplace relationship, not just limited to that of employer and employee. This is designed to align with the model Work Health and Safety law. The Bill also extends the time for people seeking recourse under the Sex Discrimination Act regarding sexual harassment to 24 months, from 6 months. Ultimately, and consistent with previous operation, as long as the relationship is established, there is no requirement that the conduct occurs in connection with work.
4. Prohibition on Sex-Based Harassment: sex-based harassment is prohibited under the Sex Discrimination Act, which is defined as unwelcome conduct of a seriously demeaning nature by reason of the person’s sex, in circumstances which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimated.
5. Breath of Coverage: the Commonwealth Government’s Bill amends the current Sex Discrimination Act 1984 (Cth), expanding its coverage to include members of Parliament, their staff and people who are a Commonwealth Judicial Officer (i.e. Judges).
6. Victimisation: the Bill provides that victimising conduct (such as threatening or subjecting a person to detriment for taking action such as lodging a complaint) can form the basis of a civil action for unlawful discrimination (in addition to a criminal complaint) under the Sex Discrimination Act.
7. Miscarriage leave: the Bill amends the existing entitlement to compassionate leave, allowing an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or the employee’s current spouse or de facto partner, has a miscarriage. This follows New South Wales becoming the first state in Australia to offer public sector employees miscarriage leave.

The Australian Chamber of Commerce and Industry (ACCI) commented that the government’s actions “must be practical and able to be implemented across a diverse range of business environments, including small businesses. The right balance must also be struck so that any new laws will be likely to be genuinely effective at addressing sexual harassment and not unnecessarily make the system more complex. This is because additional, overlapping and complex legal actions risks detracting from, rather than advancing, prevention of sexual harassment.”

Employers should start to work to ensure that their policies and training address the new prohibition against harassment on the ground of sex and are updated to align to the broader range of individuals that can be subject to the harassment laws and to deal with the new grounds for compassionate leave in relation to miscarriages.

Harassment will probably continue to be on the agenda for some time, but it is the right moment for employers to look at their organisation and adapt their structures and systems to better manage the risks connected to this matter.