Sex Discrimination Act

On 8 April 2021 the government publicly endorsed recommendations of the Respect@Work Report, commissioned by the Sex Discrimination Commissioner.

What are some of the recommendations?

In addition to support being expressed for extending the scope of the Sex Discrimination Act 1984 (‘Sex Discrimination Act’) to judges and members of parliament, the recommendations also include:

  • clarifying the provisions of the Fair Work Act 2009 (Cth) (‘FW Act’) to enable Stop Bullying Orders (SBOs) to expressly include sexual harassment orders;
  • amending section 387 of the FW Act to state that sexual harassment can be conduct amounting to a valid reason for dismissal;
  • amending the definition of ‘serious misconduct’ in the Fair Work Regulations to include sexual harassment;
  • amending the model Work Health Safety Regulations to deal with psychological health, and develop guidelines on sexual harassment with a view to informing the development of a Code of Practice on sexual harassment;
  • amending the Sex Discrimination Act to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation, as far as possible in the workplace (subject to further assessment by the government); and
  • requiring collection of data at workplace and industry level, to help improve understanding of the scope and nature of the problem posed by sexual harassment.

Impact on employers?

Employers need to make sure they have adequate sexual harassment policies and make sure they treat sexual harassment seriously and take active steps to prevent it to avoid becoming vicariously liable for such conduct.

Courts are already taking a hard line approach to this issue as illustrated in Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020], whereby the Full Bench of the Federal Court found that Boral was vicariously liable for an employee’s conduct as it failed to take all reasonable steps to prevent sexual harassment in the workplace. This included inadequate training of staff and failure to notify staff that disciplinary action may be taken against employees who engage in such conduct.

This case also set out that at a minimum employers must ensure that workplace policies and training sessions include clear, specific statements and evidence that employees understand the content of the policies and training.

What now?

Legislation is expected to be drafted by the federal government by the end of June 2021 but it would be reasonable to assume that employers will now be required to review the following:

  • workplace sexual harassment policies;
  • grievance policies in relation to how to support employees who make complaints;
  • training available and material in relation to sexual harassment; and
  • how incidences are recorded and used in the future to prevent such conduct.

Please do not hesitate to contact our employment team (Simon Abraham and Amy La Verde) if your business needs further guidance or support in relation to sexual harassment policies and training.