May 11, 2021

Volume XI, Number 131

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May 11, 2021

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May 10, 2021

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Sexual harassment reforms fast approaching in response to Respect@Work (Australia)

In the wake of a spate of high profile sexual assault and harassment allegations in recent weeks, the federal government has announced it will implement a suite of anti-harassment reforms in response to the Sex Discrimination Commissioner’s landmark Respect@Work national inquiry report, which was released in March 2020.

The Respect@Work inquiry found that Australia’s current legal and regulatory system for addressing workplace sexual harassment is “complex and confusing” for workers and employers. For example, the report highlighted that the complaints mechanisms for reporting sexual harassment are widely considered difficult to navigate. Last week the federal government published its long-awaited response to the Commissioner’s report. In agreeing (in full, in part or in principle) or noting the Commissioner’s 55 recommendations, the government has confirmed it will introduce legislative amendments designed to simplify and strengthen the national legal framework for combating sexual harassment at work (though the definition of harassment itself remains unchanged).

The proposed changes include:

  • amending the Sex Discrimination Act 1984 (Cth) to expressly prohibit sex-based harassment, ensure greater alignment with model work health and safety laws, and ensure that section 105 of the Act, which relates to accessorial liability of persons involved in unlawful acts applies to those who aid or permit those acts;

  • clarifying in the Fair Work Act 2009 (Cth) that sexual harassment can be a valid reason for dismissal. While this change does not alter an employer’s existing rights (sexual harassment has always constituted a potentially valid reason for termination), its explicit inclusion in the Act is expected to up the stakes for employers by making it clear that they should be considering termination as an acceptable response in appropriate cases;

  • including sexual harassment within the definition in the Fair Work Regulations 2009 (Cth) of “serious misconduct” warranting dismissal without notice; and

  • confirming that a ‘stop bullying order’ under the Fair Work Act is available to workers “in the context of sexual harassment”. The government declined to adopt in full the Commissioner’s recommendation to introduce into the Fair Work system a separate ‘stop sexual harassment order’.

Although not recommended in the Respect@Work report, the government also confirmed it will introduce changes to extend the scope of the Sex Discrimination Act to judges and members of parliament.

The government stopped short of accepting in full the Commissioner’s recommendation to introduce into the Sex Discrimination Act a positive duty on employers to take reasonable measures to eliminate sex discrimination and sexual harassment.  The government noted that a positive duty already exists on employers to ensure so far as reasonably practicable that workers are not exposed to health and safety risks. The government has however confirmed it will “assess whether such amendments would create further complexity, uncertainty or duplication in the overarching legal framework”.

The government is aiming to introduce its proposed legislation into parliament by June 2021.

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© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 104
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About this Author

Nicola Elam Competition & Antitrust Attorney Squire Patton Boggs Manchester, UK
Director

Nicola Elam is a director based in our Manchester office specialising in all aspects of EU and UK competition law. Nicola has previously worked at the European Commission and undertaken client secondments, including to EE and Visa.

The Legal 500 UK has recognized Nicola for providing “great service and quick turnarounds with clear advice.”

44 161-830-5072
Madeleine Smith Labour & Employment Attorney Squire Patton Boggs Perth, Australia
Associate

Madeleine Smith is an associate in our Labour & Employment Practice Group. She advises clients on a wide range of employment law matters, including the application of employment-related and workplace safety and health legislation and case law, as well as employment-related disputes.


In addition to employment law, Madeleine is a Registered Migration Agent (MARN 1912154) and assists our Business Immigration Practice Group in advising clients on employment and skilled visas.

Madeleine has also completed a six-month rotation in our Corporate Practice Group.

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61 8 9429 7481
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