HSA November 21

EXPANDED COVERAGE OF THE
SEX DISCRIMINATION ACT
The Respect at Work Act amends
the Sex Discrimination Act to
ensure that the Sex Discrimination
Act’s provisions are closely aligned
with terms used in model Work
Health and Safety laws such as the
concepts of a ‘worker’ and ‘PCBU’
(persons conducting a business
or undertaking). The use of these
terms ensures that the coverage
of the Sex Discrimination Act is
expanded to include persons not
previously covered under the Act
including interns, volunteers and
self-employed.
The Sex Discrimination Act has also
been expanded to include members
of parliament, their staff, judges
and public servants at all levels of
government.
The Sex Discrimination Act has
also been amended to include the
term “in connection with” such
that a worker, PCBU, employee or
employer does not have to actually
be performing their work duties at
the time the sexual harassment
occurs in order for the harassment
to be covered under the Sex
Discrimination Act. The worker,
PCBU, employee or employer could
for example be visiting an offsite
venue to attend an organised
work event or function, visiting the
workplace out of hours or be on a
designated break from their shift.
HARASSMENT ON THE
GROUND OF SEX
In addition to sexual harassment
and sexual discrimination, the
Sex Discrimination Act has been
amended to include a new sexbased
harassment provisions.
The amendment makes it expressly
clear that it is unlawful to harass a
person on the ground of their sex.
Under the amendments a person
harasses another person on the
ground of sex if they engage in
unwelcome conduct of a seriously
demeaning nature
by reason of the person’s sex in
circumstances in which, in line
with the existing test for sexual
harassment, a reasonable person
would have anticipated that the
person harassed would be offended,
humiliated or intimidated.
Harassment on the ground of
sex will include harassment by
reason of:
• The sex of the person harassed;
or
• A characteristic that generally
relates to persons of the sex of
the person harassed; or
• A characteristic that is generally
attributed to persons of the sex
of the person harassed.
VICTIMISATION
The Sex Discrimination Act has
been amended to introduce a new
provision that makes it unlawful to
victimise a person if they have taken
action, or propose to take action,
in relation to a discrimination or
harassment claim.
Victimising conduct can now
form the basis of a civil action
for unlawful discrimination in
addition to a criminal complaint
under the Sex Discrimination
Act. So a person could make a
complaint to the Australian Human
Rights Commission (AHRC) and
additionally undertake civil action
against an alleged perpetrator.
TERMINATION OF
COMPLAINTS TO THE AHRC
The Sex Discrimination Act
allows for the President of the
AHRC to terminate a complaint
on discretionary grounds.
Previously such complaints could
be terminated on discretionary
grounds by the President if the
complaint was lodged more than 6
months after the alleged conduct
occurred. The Respect at Work Act
has amended the timeframe such
that the President will only have
discretionary grounds to terminate
the complaint if it is lodged more
than 24 months after the alleged
unlawful conduct took place.
STOP SEXUAL
HARASSMENT ORDER
The Respect at Work Act amends
the existing anti-bullying legislation
in the Fair Work Act, to make it clear
that within that jurisdiction, the Fair
Work Commission (FWC) can make
an order to stop sexual harassment
in the workplace.
The FWC can make an order to
stop sexual harassment, where
it is satisfied that the worker has
been sexually harassed at work by
one or more individuals, and it is
satisfied that there is a risk that the
worker will continue to be sexually
harassed at work by the individual
or individuals.
The FWC must be satisfied that the
harassment has occurred to make
an order, and orders would not be
available in cases where there is no
risk of harassment occurring again,
for example when the person who
harassed the worker is no longer
employed at the workplace.
UNFAIR DISMISSAL
The Respect at Work Act has
amended the Fair Work Act to
clarify that sexual harassment can
be conduct amounting to a valid
reason for dismissal in determining
whether a dismissal was harsh,
unjust or unreasonable.
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