Secure Jobs, Better Pay Bill: Strengthening sexual harassment and sex discrimination laws
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (the Bill) proposes ambitious changes to the Fair Work Act 2009 (Cth) (FWA), with the promotion of job security and gender equity being a focus of the industrial relations reform.
One key area the Bill seeks to strengthen is sexual harassment and sex discrimination legislation. Trent Hancock explains the proposed changes to these laws below.
There is presently no express prohibition of sexual harassment under the Fair Work Act. The Bill proposes to change this by introducing section 527D, which will create a standalone prohibition of sexual harassment for workers and prospective workers, including employees, contractors, volunteers and trainees. It will also extend to sexual harassment by third parties in the workplace, such as customers or clients. This will be a civil remedy provision meaning a penalty can be imposed. This section will separate the workplace bullying provisions in the FWA from the new sexual harassment provisions.
Another new section, 527F, will allow a person to make a sexual harassment application to the Fair Work Commission (FWC) seeking, among other things, a stop sexual harassment order. Section 527R will compel the FWC to deal with the dispute and issue a certificate if all reasonable attempts to resolve the dispute have been unsuccessful. The person can then make a court application within 60 days of the certificate being issued.
As noted in the Explanatory Memorandum, these provisions will implement recommendations made in the Respect@Work Report by prohibiting sexual harassment in connection with work in the FWA. The prohibition is supported by a new dispute resolution framework modelled on the compliance framework in the FWA that applies to general protections dismissal disputes. In most cases, the FWC would first deal with a dispute by conciliation or mediation. If the dispute remained unsettled, the parties could proceed to consent arbitration or make an application to a federal court.
Currently, the FWA prohibits an employer from taking adverse action against an employee, or prospective employee, because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. This adverse action or discrimination can take a number of forms, including lesser pay, disciplinary action, denying access to a promotion or training and even dismissal. The Bill seeks to extend these anti-discrimination provisions of the FWA by amending section 351(1) to include breastfeeding, gender identity and intersex status as protected attributes.
The Bill also proposes to amend section 195(2) of the FWA, which deals with whether the terms of an enterprise agreement discriminate against an employee. Under these changes, a term will not be discriminatory if it is a ‘special measure being taken to achieve equality.’ A term of an enterprise agreement will be a ‘special measure to achieve equality’ if it has the purpose of achieving substantive equality for employees, or prospective employees, who have a particular attribute or kind of attribute, and a reasonable person would consider the term necessary to achieve equality. For example, employees who are female and have a physical or mental disability. Once substantive equality for the specific group of employees has been achieved, the term will cease to be a ‘special measure to achieve equality.’
Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.