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Sex Discrimination and Fair Work Amendment Act 2021

After months of anticipation, the Australian Federal Government’s Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 has now passed both houses of Parliament. Among other things, it aligns legislation in this area with that concerning workplace bullying, allowing for the introduction of ‘stop sexual harassment’ orders similar to the ‘stop bullying’ orders already in place.

The Act’s origins lie in a 932-page report released in March 2020, which made 55 recommendations for reform and described existing legislation as "complex and confusing for victims and employers to understand and navigate.”

The main intent of the Respect@Work report was for the emphasis to be placed on preventing workplace sexual harassment from occurring in the first place rather than dealing with complaints after the fact.

Or as one of the lawyers involved put it, "placing a fence at the top of the hill rather than an ambulance at the bottom".

In what may or may not have been coincidental timing, the government announced its favorable response to the report back in April, just weeks after headline-making allegations of sexual harassment in Parliament itself.

The Amendment Act will commence on a date to be advised, after it receives royal assent. However, the Fair Work Commission’s anti-harassment order regime will commence two months after the Amendment Act comes into effect, allowing the Fair Work Commission time to adjust its processes.

Here are the main takeaways from the Sex Discrimination and Fair Work Amendment Act 2021:

  • Part 6 – 4B of the Fair Work Act 2009, which deals with ‘stop bullying’ orders, will be extended to allow a worker who has been sexually harassed at work to apply to the Fair Work Commission for a ‘stop sexual harassment’ order.

  • The definition of ‘serious misconduct’ in the Fair Work Regulations will be amended to include sexual harassment, and to clarify that such behaviour can justify summary dismissal.

  • The law will state clearly that harassment on the basis of sex is prohibited under the Sex Discrimination Act.

  • The Sex Discrimination Act’s scope will be broadened to cover volunteers, interns, and self-employed people.

  • The law will state clearly that a victimisation complaint can be considered either a civil or criminal matter.

  • The timeframe for which complaints can be made to the Australian Human Rights Commission will be extended.

  • The Fair Work Act will be amended to allow an employee to take compassionate leave if they or their spouse or de facto partner suffer a miscarriage.

What do you need to do?

Consider reviewing your workplace policies and grievance procedures to ensure they comply with the new laws. In addition, workplace training will ensure all your managers and employees understand their obligations.

Please contact us if you need help or advice regarding the new laws, policy reviews or workplace training.

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