Consultation open on new anti-sexual-harassment jurisdiction

October 13, 2021
FCB Workplace Law

In preparation for its new anti-sexual-harassment jurisdiction, the Fair Work Commission (Commission) has launched an open consultation process to collate community feedback on proposed amendments to the Fair Work Act 2009, the Sex Discrimination Act 1984 and the Australian Human Rights Act 1986.

The amending legislation, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, alters both the powers of the Commission and the obligations of employers when dealing with claims of harassment and sexual harassment in the workplace.

Inspired by the Sex Discrimination Commissioner Kate Jenkins’ Respect@Work recommendations, the new anti-sexual-harassment jurisdiction is aimed at extending the Commission’s anti-bullying powers, so that orders can be issued to stop future occurrences of sexual harassment in the workplace following a single instance of sexual harassment.

Under these new provisions, complainants of sexual harassment in the workplace will be able to access expedient, inexpensive and informal complaint mechanisms to deal with instances of unwelcome sexual advances, unwelcome requests for sexual favours or any unwelcome conduct of a sexual nature.

However, the orders the Commission can make in these circumstances are solely preventative and designed to reduce the risk of future harm, rather than impose criminal or financial sanctions onto the offending employee or their employer.

Applications for these new anti-sexual harassment orders can be made from Thursday 11 November 2021. Instances of workplace sexual harassment that occurred prior to this date can be considered by the Commission, however orders can only be made if the Commission is satisfied there is a risk the claimant will experience continued sexual harassment from the named individual or individuals.

Additional reforms arising out of the amending legislation include:

  • Clarifying that sexual harassment can be a valid reason for dismissing an employee.
  • Including sexual harassment within the expanded definition of ‘serious misconduct’.
  • Amending compassionate leave entitlements to allow employees to take up to two days of such leave if the employee, their spouse, or de facto partner, has a miscarriage.

These additional reforms require employers to provide support to complainants of sexual harassment by fully investigating the claims made as a disciplinary matter, in a similar vein to complaints of bullying.

The call by the Commission for feedback allows individuals and employers to comment on the amendments, the proposed case management process, and the draft sexual harassment benchbook, prior to the 11 November 2021 implementation.

Feedback on the amendments is to be sent to by Monday 25 October 2021, whilst all other feedback is to be provided by Monday 1 November to the same email address.

If you have concerns about how these amendments may impact your business, please contact the team at FCB.