In January 2020, the Australian Human Rights Commission (‘AHRC’) released their Respect@Work: Sexual Harassment National Inquiry Report 2020 (‘the Report’). The Report made 55 recommendations to the federal government on legislative and regulatory changes that should be made. In response to the recommendations, the government introduced the:
- Fair Work Amendment (Respect at Work) Regulation 2021 (‘the Regulation’); and
- Fair Work (Respect at Work) Amendment Bill 2021 (‘the Bill’).
The Regulation was passed effective 10 July 2021 and amended the Fair Work Regulations 2009 (‘FW Regulations’). The most significant change was to amend the definition of serious misconduct contained in regulation 1.07 to include sexual harassment as a recognised form of serious misconduct.
As mentioned above, there is a legal definition of serious misconduct, and employers need to have regard to the definition before relying on it when terminating an employee. As per the FW Regulations, serious misconduct is defined as conduct that:
- Is wilful or deliberate behaviour that is inconsistent with the continuation of employment; and
- Causes serious and imminent risk to the health and safety of a person or the reputation, viability or profitability of the employer’s business.
Regulation 1.07 has now been updated to state that the following conduct meets the above definition of serious misconduct:
- Theft, fraud, or assault;
- Being intoxicated at work;
- Refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment; and
- Sexual Harassment (new).
The change provides greater clarity that employees who engage in sexual harassment may be dismissed for the valid reason of serious misconduct (i.e. termination without notice). Of course each situation turns on the circumstances of the case, and employers are encouraged to assess those circumstances. Sexual harassment, in reference to conduct that represents serious misconduct, is defined in the Sex Discrimination Act 1984 (Cth) (‘SD Act’).
Employers considering terminating employment due to serious misconduct, should seek advice from the QHA regarding their risk if the employee chose to lodge an Unfair Dismissal, General Protections or Discrimination claim.
The Bill and resulting Act
The Bill was passed by Parliament on 2 September 2021. The resulting Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (‘Amendment Act’) then received the Royal Assent on 10 September 2021, and took effect the day after, on 11 September 2021 (except provisions related to seeking an order to stop sexual harassment, which will not take effect for a further two months).
The Amendment Act will amend three pieces of Commonwealth legislation, which will collectively strengthen and simplify the existing sexual harassment and sex discrimination protections these frameworks provide. The legislation to be amended is the:
- Fair Work Act 2009;
- SD Act; and
- Australian Human Rights Commission Act 1986
Note: The AHRC Act established the AHRC and empowers it to inquire into and attempt to conciliate unlawful discrimination complaints, such as those made under the SD Act)
Members will be provided with a more detailed summary of the amendments, and what they mean for employers in due course.
The QHA recommends that employers update any employment contracts and/or policies that reference (define) serious misconduct to reflect the updated definition in the FW Regulation.
The QHA will be updating the HR Manual’s Discipline and Termination policy and the Sexual Harassment policy to reflect the recent definition change. If you are a subscriber to the QHA HR Manual, you will automatically receive the updated policies.
The abovementioned changes will strengthen the protections and avenues available for employees who have been sexually harassed in the workplace. If you would like assistance with a specific sexual harassment incident in your workplace, we encourage you to contact the QHA’s ER team.