New powers for FWC to deal with sexual harassment issues

03 September 2021

In a partial implementation of the recommendations arising from the Sex Discrimination Commissioner’s Respect@Work report, the Federal Parliament has passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. The Act will commence when it receives Royal Assent which is expected to occur in the coming days.

The most significant changes brought about by new legislation are as follows:

  1. The Fair Work Commission’s bullying jurisdiction has been expanded to include dealing with complaints from employees that they are being sexually harassed at work. The Commission has the power to make orders to prevent the complainant from being sexually harassed at work. As with the bullying jurisdiction, the Commission does not have any power to make orders involving the payment of damages.
  2. The Fair Work Act 2009 has also been amended to expressly provide that a valid reason for termination of employment in an unfair dismissal proceeding includes that the dismissed employee has sexually harassed another employee during their employment. Arguably, this amendment does not change the law. It merely removes any possible doubt that such behaviour could justify termination of employment.
  3. Access to compassionate leave under the National Employment Standards has been expanded to include where the employee or the employee’s spouse or de facto partner has a miscarriage. The Act distinguishes between a miscarriage to which compassionate leave applies, and the stillbirth of a child, to which unpaid parental leave can apply.
  4. The power of the Australian Human Rights Commission (AHRC) to terminate a complaint under the Sex Discrimination Act has been altered to allow a complainant up to 24 months from when the offending occurred to lodge a complaint. Previously the AHRC could terminate a complaint if it had not been lodged within six months of the offending Act or Acts.

If you would like to discuss if these developments impact your business or if you require assistance with understanding your obligations as an employer, please contact a member of our Workplace Relations team.

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