Prevention is always better than a cure – Increased protection in the workplace for sexual harassment

The Commonwealth Government has been under considerable pressure for months to step in to respond to several high-profile incidents of sexual harassment. The recent tabling in the Commonwealth Parliament of a Bill with a raft of amendments to Commonwealth sexual harassment legislation provides additional options for employees to take action in relation to occurrences of sexual harassment. These options are both preventative and potentially much less expensive.
 
Up until now, the typical options for employees to make complaints against employers and/or colleagues or managers lay more in being able to seek recourse after the fact. That is, employees needed to wait until an incident had occurred to make a complaint. This left little option for protection before an incident of harassment occurred. Also, since the stripping of any effective determinative powers from the Australian Human Rights Commission, the option for employees who were seeking a low fee option to prevent future incidents of sexual harassment have been very limited.

The Government’s recent Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth) (the Bill) seeks to address this by strengthening, simplifying and streamlining Australia’s legislative and regulatory framework to provide greater protection to workers from sexual harassment and sex discrimination in the workplace.[1] This Bill seeks to amend the Australian Human Rights Commission Act 1986 (Cth), Sex Discrimination Act 1984 (Cth), and Fair Work Act 2009 (Cth). Further, this provides a lower cost and faster option than previous alternatives. The Bill seeks to implement a vast number of recommendations put forth by the [email protected] Report, a National Inquiry into sexual harassment in Australian workplaces, commissioned in 2018 by the Government.

Extending the Fair Work Commission’s Powers to ‘Stop’
The existing section 789FF of the Fair Work Act 2009 (Cth), which empowers the Fair Work Commission (FWC) to make any orders it considers appropriate[2] to prevent a worker from being bullied, will be extended to include prevention of sexual harassment. Further, in determining when a worker is bullied at work pursuant to section 789FD of the Act, the same principle will extend to when a worker has been sexually harassed. This includes authoritative decisions of the FWC noting that being ‘at work’ encompasses the performance of work and where the worker engaged in some other activity which is authorised or permitted by their employer.[3]
 
Regardless, the FWC has been selective in relation to when it would step in to make orders in relation to bullying. It’s not clear whether the FWC will be more forthcoming when it comes to making orders pertaining to sexual harassment in the future.  Nevertheless, this provides a means of addressing any early intervention into single instances of sexual harassment in order to prevent such harassment occurring again.
Sexual Harassment is a ‘valid reason’ for dismissal
Other proposed changes introduced to the Fair Work Act 2009 (Cth) with the Bill, aligning with recent FWC decisions,[4] include specifying that sexual harassment can be a valid reason for dismissal, when determining whether a termination of an offender was harsh, unjust or unreasonable (pursuant to section 387(a) of the Act). Similarly, the Bill will amend the definition of ‘serious misconduct’ to include sexual harassment pursuant to the Fair Work Regulations 2009 (Cth) reg 1.07.
Miscarriage Leave for the Private Sector
The Bill proposes to amend 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.[5] This follows NSW becoming the first state in Australia to offer public sector employees miscarriage leave.
Time Extension & Liable Parties
The Bill extends the time for people seeking recourse under the Sex Discrimination Act 1984 (Cth) regarding sexual harassment to 24 months, from 6 months, and broadens the definition of parties that can be potentially liable (in line with Work Health & Safety Legislation) to “a person conducting a business or undertaking”.  As such, this captures sexual harassment in any workplace relationship, not just limited to that of employer and employee. 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.
Breadth of Coverage
In light of the publicity earlier this year, it is also unsurprising that the Commonwealth Government’s Bill proposes amendments to the current Sex Discrimination Act 1984 (Cth), expanding its coverage to include members of Parliament, their staffers and people who are a Commonwealth Judicial Officer (i.e. Judges).[6] 
Victimisation
Finally, the Bill increases protections for people making harassment complaints under the Sex Discrimination Act 1984 (Cth) by including a victimisation provision. The provision makes it unlawful for a person to victimise another person on the basis that the latter has brought forward a complaint of sexual harassment or harassment on the grounds of sex to the Australian Human Rights Commission. As such, under section 46PO of the Australian Human Rights Commission Act 1986 (Cth), those who experience victimisation resulting from making a complaint or taking any steps under the Act may seek relief against alleged perpetrators through commencing proceedings in the Federal Court or Federal Circuit Court.
 
Similarly, the new section 28AA of the Sex Discrimination Act 1984 (Cth) will outline the meaning of ‘harassment on the ground of sex’, and extends the existing authority on determining unwelcomed conduct,[7] and threshold for establishing whether the conduct is sufficiently serious to warrant being ‘offensive, humiliating or intimidating’ in relation to sexual harassment or discrimination under the Act.[8]
 
Noting that the Bill is unlikely to be opposed, when it is enacted, it will be time for employers and persons that control venues and worksites to revisit their bullying and harassment policies as employers may be held vicariously liable for their employees’ conduct in line with section 106 of the Sex Discrimination Act 1984 (Cth).
 
Please contact Hicksons Partner, Warwick Ryan, at [email protected] with any questions you may have.
 
Post by Hicksons Partner, Warwick Ryan, and Paralegal, Lindsay Thomson.

[1] Explanatory Memorandum, Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth), [1] (‘Explanatory Memorandum).
[2] Excluding pecuniary amounts, see Fair Work Act 2009 s 789FF(1).
[3] Bowker & Ors v DP World Melbourne Limited & Ors [2014] FWCFB 9227, [51].
[4] See, e.g. Colin Ramon Reguero-Puente v City of Rockingham [2018] FWC 3148.
[5] Miscarriage is defined as the spontaneous loss of the embryo or fetus before 20 weeks’ gestation. This is based on the general medical meaning of miscarriage - Explanatory Memorandum (n 1) [25].
[6] This extends to all employed under the Members of Parliament (Staff) Act 1984 (Cth).
[7] Unwelcomed conduct was defined by Bromberg J at [27] in Ewin v Vergara (No 3) [2013] FCA 1311 as “conduct that is disagreeable to the person to whom it was directed”
[8] See, e.g. Hill v Water Resources Commission (1985) EOC 76, Leslie v Graham [2002] FCA 32, Lee v Smith [2007] FMCA 59, Poniatowska v Hickinbotham [2009] FCA 680, Ewin v Vergara (No 3) [2013] FCA 1311. Cf Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784.

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