New “Respect at Work” laws about sex-based harassment in the workforce commenced 11 September 2021. Here’s what aged care providers need to know.

Background and purpose of the new laws

In March 2020, the Human Rights Commission issued a report entitled Respect@Work: National Inquiry into Sexual Harassment in the Workplace. The report made 55 recommendations to simplify and clarify the legal frameworks for dealing with workplace sexual harassment.

As part of its response to the report, the Government passed two Respect at Work laws, which commenced on 11 September 2021. These were the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth), and the Fair Work Amendment (Respect at Work) Regulations 2021 (Cth).

The Respect at Work laws aim to give greater protection for individuals who experience sex-based harassment in the workplace. The laws also provide a new form of leave that an employee can take if the employee, or their spouse or de facto partner, has a miscarriage.

What is sex-based harassment?

Sex-based harassment is unwanted conduct that is related to an individual’s sex that offends, humiliates, or intimidates an individual. Sex-based harassment differs from sexual harassment in that the conduct does not need to be of a sexual nature for it to be sex-based harassment.

Examples of sex-based harassment could include:

• asking intrusive personal questions based on a person’s sex
• making inappropriate comments and jokes to a person based on their sex
• displaying images or materials that are sexist, misogynistic* or misandrist^**
• making sexist, misogynistic or misandrist remarks about a specific person
• requesting a person to engage in degrading conduct based on their sex.

*Misogyny means hatred or contempt of women or girls.

^** Misandry means hatred or contempt of men or boys.

What has changed under the new laws?

While many of the changes made are largely technical ones, the new laws do clarify some issues, including:

Sex-based harassment now expressly stated as a form of unlawful conduct

Many instances of sex-based harassment were already legally prohibited before the new laws came into effect, but the issue was confusing. So, as a result of the new laws, sex-based harassment is now expressly prohibited under the Sex Discrimination Act.

Discrimination obligations and protections now available to all kinds of “workers”

The obligations and protections set by the Sex Discrimination Act now apply to any “worker” and any “person conducting a business or undertaking”. This includes all paid and unpaid workers, volunteers, interns, apprentices, and self-employed workers. In addition, the obligations and protections now apply to state and federal employees, members of parliament, and judges, including their staff and consultants.  

Accessorial liability

The Sex Discrimination Act already stated that it was unlawful for an individual to commit certain acts of discrimination, but now it also states that it’s unlawful to “cause, instruct, induce, aid or permit” another person to commit the act of discrimination.

Extended time for complaints

One of the ways people seek justice in regard to sex discrimination is to lodge a complaint with the Australian Human Rights Commission (AHRC). Previously, if you lodged your sex discrimination complaint more than six months after the incident occurred, the AHRC could use this delay as grounds to terminate your complaint. Under the new laws, the AHRC can’t do that. They now must wait 24 months before they can use the time lapse as grounds to terminate your complaint. (Note: the AHRC could terminate a complaint after 24 months, but they don’t have to. In some cases, the AHRC would hear complaint about an incident that is more than 24 months old).

Sexual harassment is a valid reason for dismissal

The new laws make it clear that sexual harassment can be a valid reason for dismissal. While this was probably always the case, the new laws make it more explicit.

Stop sexual harassment orders

A person who has been sexually harassed at work can now apply to the Fair Work Commission to make a “stop sexual harassment” order similar to the “stop bullying orders” that already exist. These orders are intended to prevent risk of future harm and provide employees with access to a fast, low-cost complaints-handling system.

Miscarriage leave

The new laws extend the circumstances in which paid compassionate leave (unpaid for casuals) can be taken. An employee can now take up to two days of paid compassionate leave if the employee, or their spouse or de factor partner, has a miscarriage.

What now?

With the commencement of these new laws, now is a good time for aged care homes to audit their workplace behaviour policies and procedures, and their workplace culture. You can begin by asking:

• How common is sexual harassment and sex discrimination in my workplace? Do I have information on this? If not, what can I do to find out?
• Are there any existing complaints? If so, what is being done about them?
• Are there any historical complaints? If so, what can I learn from them?
• How are complaints or incidents in respect to sexual harassment and sex discrimination reported and to whom?
• What measures do I have in place to prevent harassment/discrimination? How well are these measures working?
• Are the leadership team and other staff trained to identify and deal with harassment/discrimination?
• Do staff, residents and others understand their protections and obligations? Is this part of the organisation’s code of conduct?
• Is there an easy, comfortable way for staff, residents and others to report harassment/discrimination?

The answers to these questions, and the process of asking them, can support you to build stronger systems and a healthier workplace culture.