On 11 September 2021 a number of legislative changes were implemented to address the findings and recommendations of the Sex Discrimination Commissioner following the National Inquiry into sexual harassment in Australian workplaces.

Summary of Changes

The major changes introduced are:

• Up to two days of compassionate leave for women and their partners who experience a miscarriage
• Interns, volunteers and self-employed workers now covered under the Sex Discrimination Act
• Sex-based harassment defined (with reference to “unwelcome conduct of a seriously demeaning nature by reason of the person’s sex”) and explicitly prohibited under legislation
• Victimisation can amount to unlawful discrimination
• Fair Work Commission has jurisdiction to make a Stop Sexual Harassment Order (an extension of its current anti-bullying powers)
• Sexual harassment included as conduct that can provide a valid reason for dismissal in unfair dismissal cases and included in the definition of serious misconduct

What This Means for Employers

Employers can be held liable for the conduct of their workers and it is therefore important to understand who is covered as a “worker” and to take steps to prevent and address issues around sexual harassment in the workplace.

The definition of “worker” used in work health and safety laws has been adopted as part of the changes to sexual harassment legislation. This means that a “worker” is defined as anyone who carries out work in any capacity for a business, including employees, contractors, subcontractors, outworkers, apprentices, trainees, work experience students, interns, volunteers carrying out work and self-employed persons. The sexual harassment laws apply not only to “employers” but to any person conducting a business or undertaking, or “PCBU” (so can include franchisors, contractors, unincorporated associations and sole traders).

There is no requirement for the conduct to occur in connection with work where it is found that a PCBU has sexually harassed a worker or that there is a connection with one of the persons being a worker or a PCBU.  This significantly expands the persons who are covered by the prohibitions as well as the circumstances in which sexual harassment can be found to occur. For example, work social occasions and conduct outside of work hours will be included if there is a connection with one of the persons being a worker or PCBU.

While there is some case law precedence for out of work and out of hours conduct being captured by existing legislation, the changes that have been implemented bring clarity and signal a more consistent approach to defining and dealing with sexual harassment in connection with the workplace.

Key action points for employers:

• Review and update your policies and procedures
• Ensure there is a clear and consistent complaints process in place
• Educate your workers and conduct training around Respect@Work

If you would like to discuss these or other workplace issues please contact Andrew Bland or call 02 9412 3077.