AHA | SA MEMBER INFORMATION
Labor Introduces Bill to Implement Further Respect@Work Recommendations OWEN WEBB - AHA | SA WORKPLACE RELATIONS MANAGER In September this year, the Albanese Government introduced legislation into Parliament to implement a further 7 recommendations from the Respect@Work Report (Jenkins Report) produced by the National Sex Discrimination Commissioner, Ms Kate Jenkins back in 2021. In this article we look at the legislative changes that have been made so far from the Jenkins Report recommendations, as well as the intended amendments from the most recent legislation introduced by the Albanese Government. We also outline the implications for businesses and what they should be doing in response to these changes. RESPECT AT WORK REPORT (JENKINS REPORT ) In 2018, the Morrison Government announced a national inquiry into sexual harassment in Australian workplaces. The Morrison Government commissioned the National Sex Discrimination Commissioner, Ms Kate Jenkins to oversee the inquiry. The Terms of Reference of the Inquiry was to review and report on workplace sexual harassment and make recommendations in relation to: • its prevalence, nature and reporting in Australian workplaces • the role of technology • its drivers, including risk factors for particular population groups or in different workplace settings • the current legal framework • existing measures to address it and examples of good practice • its impacts on individuals and businesses, including its economic impact
In January 2020, the Sex Discrimination Commissioner released the Respect@Work Report: National Inquiry into Sexual Harassment in Australian Workplaces (Jenkins Report). One of the overarching recommendations from the Jenkins Report was the importance of legislative amendments to simplify and clarify the overarching legal frameworks to ensure that employers and employees are able to effectively address sexual harassment in the workplace. SEX DISCRIMINATION AND FAIR WORK ( RESPECT AT WORK ) AMENDMENT ACT 2021 In response to the National Inquiry and a number of recommendations from the Jenkins Report, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (Respect at Work Act) was introduced into Parliament by the former Morrison Government and commenced on 11 September 2021. The Respect at Work Act made amendments to the Fair Work Act 2009 (Cth) (Fair Work Act), the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) and the Australian Human Rights Commission Act 1986 (Cth) (Australian Human Rights Commission Act). The Respect at Work Act gave effect to recommendations 16, 20, 21, 29 and 30 of the Jenkins Report. The amendments included the following: • Amending 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
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concepts of a ‘worker’ and ‘PCBU’ (persons conducting a business or undertaking). The use of these terms ensured that the coverage of the Sex Discrimination Act was expanded to include persons not previously covered under the Act including interns, volunteers and self-employed. The Sex Discrimination Act was also 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. • In addition to sexual harassment and sexual discrimination, the Sex Discrimination Act was also amended to include a new sexbased harassment provision. This amendment made it expressly clear that it is unlawful to harass a person on the ground of their sex. 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. • The Sex Discrimination Act was also amended to introduce a 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. Back to Contents
