Cth Introduces Bill to Address Sexual Harassment in Australian Workplaces

Thursday 19 August 2021 @ 3.46 p.m. | Industrial Law | Legal Research

On 24 June 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth) (“the Bill”) was introduced into the Senate by Minister for Women's Safety Senator Anne Ruston ("the Minister"). The Bill was then immediately referred to the Senate Education and Employment Legislation Committee ("the Committee"). A report from the Committee was tabled on 6 August 2021.

The Bill is still before the Senate and proposes amendments to:

  • Australian Human Rights Commission Act 1986 (Cth)
  • Fair Work Act 2009 (Cth)
  • Sex Discrimination Act 1984 (Cth).

Background of the Bill

In 2018, the Australian Human Rights Commission was funded by the Government to undertake the National Inquiry into Sexual Harassment in Australian Workplaces ("the Inquiry"). On 5 March 2020, Respect@Work: Sexual Harassment National Inquiry Report (“the Report”) was released. The Report made 55 recommendations. and was discussed in an earlier TimeBase article.

In response to the Report, on 8 April 2021, the Government set out its response in 'A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces' (“the Roadmap”).

The Roadmap notes [at page 5]:

“the Government sets out its strong, long-term commitment to building a culture of respectful relationships in Australian workplaces by agreeing to (in full, in part or in principle) or noting all 55 recommendations in the Report … This Roadmap provides a clear and comprehensive strategy forward for Australia to build a culture of respectful relationships in the workplace.”

This Bill is part of the Government's response to the Report, and gives effect tot eh legislative amendments set out in the Roadmap, which relate to recommendations 16, 20, 21, 22, 29, and 30.

Purpose of the Bill

The Bill's explanatory memorandum outlines that:

"[t]he Government is taking action to strengthen, simplify and streamline the legislative and regulatory frameworks that protect workers from sexual harassment and other forms of sex discrimination in the workplace. This Bill would ensure that more workers, particularly vulnerable workers, are protected and empowered to address unlawful conduct. These reforms are essential for advancing both women’s safety and economic security. "

The Committee report summarises some of the proposed amendments outlined in the Bill. Some of the key amendments aim to:

  • “amend the object clause of the SD Act to make it clear that the Act aims to achieve, so far as practicable, equality of opportunity between men and women;
  • amend the SD Act to insert a new provision to provide clarity around the circumstances in which sexual harassment and harassment on the ground of sex is unlawful in the workplace;
  • more closely align protections in the SD Act with the Work Health and Safety Act 2011 to ensure all paid and unpaid workers are protected from sexual harassment;
  • clarify that a worker who is sexually harassed at work may apply to the Fair Work Commission for an order to stop the harassment; ...
  • amend the FW Act to inform readers that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable”.

Comment and Reaction to the Bill

In her second reading speech the Minister commented:

“In summary, this Bill will ensure all Australians are protected from workplace sexual harassment, by expanding the scope of existing sexual harassment prohibitions, promoting clarity for employers and workers, and reducing procedural barriers for sexual harassment complainants. Together with the other commitments outlined in the Government's Roadmap for Respect, these amendments will support the creation of safe workplaces and are essential for advancing both women's safety and economic security.”

The Law Council of Australia in its submission to the Committee on 16 July 2021,  noted:

“While the Bill (and its Explanatory Memorandum) do not purport to do so, it is observed that the Bill does not address all the Respect@Work Recommendations relevant to federal law reform … The Law Council otherwise appreciates Parliament having referred this important Bill for consideration by the Committee and broader consultation. The Law Council has considered the Bill in consultation with its Constituent Bodies, Sections and expert Advisory Committees, and is supportive of the Australian Government’s efforts to drive necessary change through federal law reform."

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