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Australian Chamber of Commerce and Industry Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • WORKING FOR BUSINESS.

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I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • CONTENTS CONTENTS 1.

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INTRODUCTION AMENDING THE OBJECT OF THE SD ACT SEX-BASED HARASSMENT EXPANDED COVERAGE OF THE SD ACT 'SIMPLIFIED PROCESSES' FOR COMPLAINTS TO THE AHRC SEXUAL HARASSMENT 'STOP ORDERS' VALID REASON FOR DISMISSAL AHRC FUNCTIONS EXTENSION OF COMPASSIONATE LEAVE TO MISCARRIAGE 3 4 6 7 9 11 13 16 19 20 I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • 1.
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INTRODUCTION The Australian Chamber of Commerce and Industry (ACCI ) welcomes the opportunity to make a submission to the Senate Education and Employment Legislation Committee Inquiry into the Sex Discrimination and Fair Work (Respect at Work) Bill 2021.

The Bill seeks to make changes to the Fair Work Act 2009 (FW Act), the Sex Discrimination Act 1984 (SD Act) and the Australian Human Rights Commission Act 1986 (AHRC Act).
The Bill would give effect to a number of recommendations concerning legislative reform in the Sex Discrimination Commissioner's Respect@Work report .

Th is follows the National Inquiry into Sexual Harassment in Australian Workplaces, which ACCI participated in as a key member of the National Inquiry's Reference Group.

This followed a detailed submission made to the National Inquiry based on extensive consultation with employers.
ACCI was pleased to see that a number of our recommendations to assist with the prevention, management of sexual harassment were taken up in the National Inquiry's final report, and adopted in the Government's Roadmap to Respect response .

This Bill would also vary the existing entitlement to compassionate leave in the FW Act to include miscarriage as a permissible occasion to access that leave.

Employers, like the rest of the commun ity, do not want sexual harassment in their workplaces.
Employers recognise they have a role to play in preventing and addressing sexual harassment in the workplace.

Sexual harassment however is a complex societal issue and must be a shared responsibility across the commun ity.

It requ ires a multifaceted approach as a commun ity in order to change deep seated attitudes prevalent across all aspects of our society, importantly including before people enter the workforce .
In assessing this Bill it is important to note that to be effective, any legislative response must be practical and able to be implemented across a diverse range of business environments, including small businesses.

The right balance must also be struck so that any new laws will be likely to be genuinely effective at addressing sexual harassment and not unnecessarily make the system more complex.
Th is is because additional, overlapping and complex legal causes of action risks detracting from, rather than advanci ng, prevention of sexual harassment.

This Bill will complement additional action that is being undertaken in response to other recommendations in the Respect@Work report, including in relation to education and primary prevention which will be crucial in addressing sexual harassment and stopping it at its source.
In addition, the body of work to address sexual harassment will conti nue through important initiatives of the Respect@Work Council.

ACCI has been invited to be an associate member of the Respect@Work council and looks forward to contributing to this important body of work.
ACCI will continue to work close ly with Government, regu lators and other stakeholders to contribute to creating safe and respectfu l I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • workplaces for workers, clients and customers across Austral ia now and into the future .

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ACCI has addressed the provisions of the Bill in the submission below and commends to the Committee a number of suggested amendments to the Bill to ensure that it meets the objectives of the legislation and that there are no unintended consequences.
I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • 2.

AMENDING THE OBJECT OF THE SD ACT 10.

The Bill in new s.3(e) of the SD Act would provide that an additional object of the SD Act is 'to achieve, so far as practicable, equality of opportunity between men and women. '

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ACCI understands this proposed amendment is in response to recommendation 16 of the Respect@Work Report and aims to ensure that the concept of equality and the elimination of opportunity between men and women , discrimination, underpins the operation of the SD Act.

in addition to 12.
in addition to 12.

In making th is recommendation , the Respect@Work Report states: "The Commission agrees that a comprehensive understanding of equality should underpin the Sex Discrimination Act and that explicitly stating this as an object of the legislation can assist in clarifying its underlying purposes and foundational principles, and provide guidance to both the community and the courts. "

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ACCI does not propose any amendments to proposed new s.3( e) of the Bill.
It may however be useful in order to assist with the interaction between laws to clarify whether the term inology 'men and women' used in the additional object refers to sex or gender.

I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • 3.

SEX-BASED HARASSMENT 14.


The Bill would insert a new provision in Division 3 of Part II of the SD Act to "make it expressly clear that it is unlawful to harass a person on the ground of their sex".1 15.

The policy basis behind the introduction of th is new provision is said to be as follow: The Respect@Work Report concluded that while sex-based harassment is already prohibited under the SD Act as a form of sex-based discrimination, this is not well understood.
This amendment would merely clarify the existing case law, which shows that sex-based harassment can already be found unlawful under the SD Act.

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If indeed the purpose is to clarify that this type of conduct is already unlawful, then it is not clear why an additional provision is required (i.e.

to prohibit someth ing that is already prohibited).

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ACCI submits that it may be more appropriate to instead clarify that, as noted in the Explanatory Memorandum, sex-based harassment can already be found to be unlawful under the SD Act, as opposed to creating a new, and duplicative, provision.

For example, th is could be done by way of legislative note, or guidance material.

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Notwithstanding this, if this new provision is to be included in the Bill, ACC I wishes to make the following comments on the provision as drafted.

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The meaning of 'harassment on the grounds of sex' for the purposes of the SD Act is set out in new section 28AA of the Bill, as follows: (1) For the purposes of this Act, a person harasses another person (the person harassed) on the ground of sex if: (a) by reason of: (i) the sex of the person harassed; or (ii) a characteristic that appertains generally to persons of the sex of the person harassed; or (iii) a characteristic that is generally imputed to persons of the sex of the person harassed; the person engages in unwelcome conduct of a seriously demeaning nature in relation to the person harassed; and (b) the person does so in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
Note: See a/so section 8 (acts done for 2 or more reasons) 1 Explanatory Memorandum, para 7, p.4.

I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • 20.
The Explanatory Memorandum notes that the new provision would not capture mild forms of inappropriate conduct based on a person's sex.2 Rather, it targets cond uct of a sufficiently serious nature that it ought to be unlawful.

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In doing so, the provision refers to cond uct of a "seriously demeaning" nature, and the seriousness of the cond uct is also taken into consideration.
This has the benefit of making clear that innocuous, less offensive behaviour, while perhaps not being the most polite way to interact in a workplace, is not prohibited by legislation and deemed to be unlawful.

This could incl ude anything that might be based on a generalisation of a gender stereotype of any ki nd, for example, conduct including the use of words such as "man fl u", "a women's touch", "mansplaining", or "having a boy / man look".

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This is important, because if the provision was drafted in a way that captured such forms of conduct there would be a risk of this provision having less impact and validity as it may be seen as overreach and impacting everyday trivial conduct rather than providing clarity by targeti ng the genuinely inappropriate conduct the reforms are intended to stop.

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ACCI also notes that the provision appears to have been modelled off the sexual harassment provisions and has therefore picked up the same threshold of "anticipated the possibility that the person harassed would be offended, humiliated or intimidated".

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However, while this test may be appropriate for sexual harassment, as conduct of a sexual nature carries a particularly significant risk of detriment at the point of being a possibility, conduct involving comments on the basis of the sex is of a different nature, one which we would argue there is more of a sliding scale depending on the comment and which by its very nature carries less risk at the point of being a possibility when compared to sexual harassment.

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To address th is, ACCI suggests the following amendment: (b) the person does so in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated tho µooojbi!ity likelihood that the person harassed would be offended, humiliated or intimidated.

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In addition, the application of appropriate exemptions in relation to sex-based harassment will need to be carefully thought out given the potential overlap with conduct that may ordinarily constitute discrimination but for an exemption applying.

This could include , for example, how the provisions of discrimination operate with respect to sex-based services and/or memberships (e.g.
female only gyms or male/female only clubs), including where services, membership and/or access is permitted to be declined on the ground of person's sex.

ACCI suggests that the prohibition against harassment on the ground of sex be considered in light of whether any current exemptions relating to discrimination should apply, so as to avoid any unintended consequences.

2 Explanatory Memorandum, para 10.


I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • 4.

EXPANDED COVERAGE OF THE SD ACT Definitions consistent with the WHS model laws 27.

The Bill seeks to expand the application of harassment laws by adopting work health and safety (WHS) term inology.
It seeks to extend the operation to all those who "participate" in the workplace by adopting the concepts of 'worker' and 'PCBU' (person conducting a business or undertaking) from WHS law both in the amended definitions and in amended section 288(3)-(8) which deals with unlawful sexual harassment the Respect@Work Report3.

in employment.

This expansion was recommended by 28.


In practice this means the Bill expands the coverage from the existing employer, employers, commission agents, contract workers and partners in a partnership to any 'worker' or 'PCBU'.

For example this mean the SD Act would also cover host employers (as a PCBU) against labour hire worker (as a 'worker') at a workplace.

It also expands the coverage to persons not previously covered by the SD Act such as interns, volunteers and self-employed workers.

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Given both the expansion of the coverage of harassment laws in the workplace, the fact that employers largely bear responsibility within the workplace for addressing and resolvi ng complaints of sexual harassment and under certa in circumstances are vicariously liable for such action, it is ACCl's view that given the challenges of managing these situations employers should be provided with additional support and education to assist them in understanding and meeting their legal obligations in this area (obligations which are already very onerous) and the extent of the challenges they face should be acknowledged.
Expanded coverage to conduct 'in connection with' 30.

Where there is no working relationship between the person and a PCBU or worker, the expanded provisions in new subsection 288(2) propose that the cond uct may nevertheless be captu red by the harassment laws as long as there is a "connection" with one of the persons being a worker or a PCBU.

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As the explanatory memorandum makes clear, the "con nection" that is needed does not necessarily mean that the worker, PCBU , employee or employer is performing their work duties at the time the conduct occurs.

Rather, the connection requires some form of conduct or activity, or visiti ng of a particular place, as a resu lt of the person being a worker, PCBU , employee or employer.

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The explanatory memorandum to the Bill gives a number of helpful illustrative examples of such behaviour which may be deemed "in connection with" including the following: • Attending a pub to continue a discussion begun at the principal workplace.
3 Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, 2020, Recommendation 16 I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • • A veh icle used to travel to work, a conference or meeting, or to meet clients.
• Visiting the workplace out of hours because of a connection to work, for example to check the roster, collect payslips or collect belongings from a locker.

• Conduct that occurs out of work hours, such as through text message, if the parties only have a professional relationship.

• Remaining in their workplace on a lunch break or after their shift has finished 33.
Given these changes expand the potential for employers to be vicarious liability for a broad range of behaviours in including behaviour outside of workplace that can loosely be connected to workplace, ACCI believes that it is important to appreciate that such an expansion of responsibility is like ly mean a greater potential for the employers to need to influence or restrict the way 'workers' including non-employees behave outside of work hours in order ensure they have taken reasonable steps to protect 'workers' in order to meet their legal obligations.
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Some employers may rightly and fairly choose to take steps to ensure compliance with the expanded coverage of the SD Act by for example issuing policies such as blanket bans on 'workers' being friends on social media with any other workers or restricting access to the workplace by workers outside of strict work hours in order to seek to comply with the law as amended.

Extension of Sexual harassment laws to the Judiciary.

Members of Parliament and State Public Servants 35.
The Bill seeks to clarify that the scope of the SD Act extends to members of parliament, their staff and judges and also seeks to remove the existing exemption of state public servants in the SD Act.

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Everyone has a right to a workplace that is respectful, safe, and free from sexual harassment.

There is no reason to treat members of parliament, their staff, judges and state public servants any different to the rest of the community.
ACCI welcomes and supports these amendments which will bring the SD Act in to line with other federal anti-discrimination laws.

I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • 5.

'SIMPLIFIED PROCESSES' FOR COMPLAINTS TO THE AHRC Victim ising cond uct - civil action 37.
Item 77 creates a new civil provision relating to victimisation conduct in the SD Act, allowing for civil proceedings against a person alleged to have victim ised a complainant to be initiated in the Federal Court or the Federal Circuit Court under the AHRC Act.

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ACCI understands this proposed amendment is in response to recommendation 21 of the Respect@Work Report which noted that three cases since 2011 had cast doubt on whether either the Federal Circuit Court or the Federal Court has jurisdiction to hear an application of unlawful discrimination under the Australian Human Rights Commission Act, where the alleged unlawful discrimination is an act of victimisation brought as a civi l action as opposed to a criminal action.

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As a result the explanatory memorandum to the Bill sets out that new section 47A seeks to: "remedy this legal uncertainty and clarify that victimising conduct is unlawful discrimination and can form the basis of a civil proceeding".

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Whilst ACCI appreciates the need for clarity in th e operation of sexual harassment laws we note that there is already a civil action under the general protections provisions of the FW Act concerni ng unlawful discrimination on grounds very similar to those set out in section 94 of the SD Act.

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Section 340 of the FW Act already provides that a person (such as an employer), must not take any 'adverse action' against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right such as making a workplace complaint.

'Adverse action ' includes conduct that constitutes victimisation.

Th is section is a civil remedy provision.

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Regulation is most effective when it is stand alone, and comes from a single source without competing or overlapping reg ulation or messaging from another quarters.

Clarity of responsibility also supports comp liance.

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ACCI is of the view that this proposed change in the Bill would simply add to the ambiguity, overlap and friction between jurisd ictions, law and responsibil ities in relation to sexual harassment rather than enhance them any further.
ACCI does not support the addition of the new provision on this basis.

Commencement - Victimising conduct 44.

Item 88 of the Bill provides for the retrospective application of new subsection 4 7 A( 1) of the SD Act to victimising conduct that has occurred prior to the commencement of this Bill.
It provides that for the purposes of new subsection I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • 47 A(1 ), it is immaterial whether the act of victimisation was comm itted before, at or for acts of victimisation committed before after the commencement and commencement, new subsection 47A(1) is modified to include the phrase ', and is taken to have been unlawful.'
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Whilst it is ACCl's view that retrospective laws are typically inconsistent with the rule of law, which requ ires all members to be subject to publicly disclosed laws, given victimising conduct can already see a person civi lly liable for under exist adverse action provision in the FW Act (as set out in detail above), if the new civil victimisation provision is to be maintained ACCI does not believe it is necessary to amend the commenceme nt of this section.
Complaints of sexual harassment to the AHRC may be within 2 years of the alleged conduct 46.

Section 46PH(1 )(b) of the AHRC Act currently provides that the President may terminate a complaint if the complaint was lodged more than 6 months after the alleged unlawful discrimination took place.

Th is time period was red uced from a period of 12 months to 6 months in Apri l 2017 in order to provide a strong ince ntive for complainants to lodge complaints in a timely manner.
4 It was also said to provide the President with additional flexibility to terminate potentially vexatious cases or others brought for similar unmeritorious purposes, thus reducing the burden on potential respondents.

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Item 3 of the Bill seeks to amend the discretionary periods during which a complaint to the AHRC may be termi nated by the President under the SD Act.
Under the Bill, instead of the current ti meframe of 6 months, a complai nt under the SD Act cou ld only be term inated if it is made more than 24 months after the alleged unlawful conduct took place.

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Whilst ACCI in this that recognises recommended timeframe was the Respect@Work Report and does not object to the principle that there should be some level of discretion to accept late lodgements in exceptional circumstances (as is the case for federal unfair dismissal legislation), we do wish to draw attention to the significant problems employers may face when an aggrieved employee makes a claim long after the alleged unlawful cond uct is alleged to have occurred .
In sexual harassment proceedings, key evidence often may be in the sole domain of certain employees (or ex-employees) or contained in documents such as email, both of which may not be available after a prologue period of time.

This is a particular problem when the alleged wrong doer is a former employee who has left the workplace and the employer is alleged to be vicariously liable.
In such cases there is little incentive for such persons to cooperate with their employers in an investigation into the complaint.

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It is also important to note that just because a party has its application termi nated in the AHRC, this does not prevent a complainant from also making an application directly to the Federal Court or Federal Magistrates Court.

4 Human Rights Legislation Amendment Bill 2017, Explanatory memorandum, page 32.
I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • 6.

SEXUAL HARASSMENT 'STOP ORDERS' 50.

The Bill would amend the existing anti-bullying jurisdiction in the FW Act to provide that the FWC can make an order to stop sexual harassment in the workplace.

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The FWC would be empowered to make an order in circumstances where a worker has been sexually harassed by one or more individuals while the worker is at work.5 52.
The meaning of 'at work' would be informed by the principles developed in FWC decisions that have considered the meaning of 'at work' in the existing anti-bullying jurisdiction, meaning the concept of being 'at work' cou ld likely include both the performance of work and when the worker is engaged in some other activity which is authorised or permitted by their employer.
6 Where there is uncertainty, the facts and circumstances of the matter will need to be assessed to determine whether there is a clear and temporal connection to work.

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Sensibly, "sexually harass" has the same meaning as it does in section 28A of the SD Act.
While the definition of 'sexual harassment' in s.28A of the SD Act can at times be difficult to interpret and apply, consistent definitions are important to ensure a greater level of understanding and consistency across legislation and jurisdictions dealing with the same subject matter.

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Distinct from stop bullying orders, an application can be made after one occasion or instance of sexual harassment.7 This is intended to reflect that cond uct can be sexual harassment after one occasion and is not necessarily repeated or continuous.
Wh ile this is the case, it is important that the consideration in current s.789FF(1) remain (that there must be a risk the worker will continue to be sexually harassed), so that third party intervention does not become commonplace after a single instance of conduct that for example may have subsequently been addressed, such as the display of a sexually explicit picture that has since been removed , or a co-worker telling a once-off joke with sexual overtones who has since been reminded of appropriate workplace behaviour by their employer, has shown remorse and has undertaken to refrain from such behaviour in the future.
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As noted in the Explanatory Memorandum,8 s.789FD(2A) also does not requ ire the worker to establish a risk to health and safety when an application to the FWC concerning sexual harassment is made.

FWC Orders 56.

New subsection 789FF(1) expressly provides that the FWC can make orders to address sexual harassment, bullying, or both.

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As touched on above, similar to the bullying j urisdiction, prior to making an order the FWC must be satisfied that there is a risk the worker will continue to be sexually 5 See Fair Work Act, ss.789FD(2A}, 789FF(1).

6 See Explanatory Memorandum, page 23; (2014] FWCFB 9227; (2016] FWC 7039.

7 Fair Work Act, ss.789FD(2A).

8 Explanatory Memorandum, p.22, para 38.
I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • harassed at work by the individual or individuals.9 This is a sensible qualification as it would prevent an order being made where it may not be necessary, such as if the perpetrator who harassed the worker was no longer employed at the workplace.
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The FWC can make any order it considers appropriate to prevent the worker from being sexually harassed at work.

Importantly, this jurisdiction focuses on non pecuniary orders, as it is intended as an avenue for early intervention and prevention of sexual harassment continuing.

This remedy is in addition to remedies already available under other jurisdictions, including compensatory remed ies.

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Current section 789FF(2) will remain , wh ich provides as follows: (2) In considering the terms of an order, the FWC must take into account: (a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and (b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and (c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and (d) any matters that the FWC considers relevant.
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These are important qualifications to ensure that orders will not be made in circumstances where, for example, an employer may be in the process of investigating the circumstances surround ing any internal complaint about sexual harassing cond uct, or where a matter may be able to be resolved during FWC conferences without the need for a formal order.

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The Explanatory Memorandum notes that ''the existing jurisprudence, which will continue to be relevant in relation to the modified jurisdiction, provides that orders can apply to a broad range of persons, most obviously co-workers but also employers and visitors to the workplace where appropriate. "

In making any such order it will remain important for the ability of the employer to implement the terms of an order to be taken into consideration to ensure that the orders are able to be complied with .
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In recommending stop sexual harassment orders, the Sex Discrimination Commissioner in the Respect@Work Report said as follows: 10 The Commission recognises the value of stop bullying orders as part of an early intervention approach where the ultimate aim of both the employee and employer is to restore the working relationship.

One particular benefit is that the 9 Fair Work Act, s.789FF(1).

10 AHRC, Respect@Work Report, p.524.


I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • Fair Work Commission is required by the Fair Work Act to start to deal with an application within 14 days of it being made, providing prompt action for victims.

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This benefit was also recogn ised when the anti-bullying jurisdiction was introduced, with the Explanatory Memorandum to the Fair Work Amendment Bill 2013 stating that 'the focus is on resolving the matter and enabling normal working relationships to resume. '
In a press release relating to the jurisdiction in 2013, the then Government stated that empowering the FWC to deal with bullying complaints would also 'provide an accessible, affordable and timely pathway to help resolve bullying matters for workers and employers.

t1 1 64.

It is important to note that the focus is not necessarily on the FWC making an order in such matters.

The FWC also has a role to play in the early resolution of these matters without the need for a formal order.
Data in relation to the anti-bullying jurisdiction revealed that only 8% of final ised anti-bullying matters were resolved by the FWC issuing an order.

As noted by the Respect@Work Report, th is suggests ''the benefits of an intensive early intervention approach to resolving bullying matters, which could also apply to sexual harassment matters.

,,i 2 Commencement 65.

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Item 50 of the Bill provides that it is immaterial whether the worker has been sexually harassed at work before, at or after the commencement of the Bill.

This means that an application for a stop order relating to sexual harassment would be able to be made the day after the Act receives royal assent.
In th is regard , we note the submission of the Fair Work Commission in which it has requested the day after Roya l Assent, the amendments that extend the anti-bullying jurisd iction to expressly provide for orders to stop sexual harassment commence no earlier than 2 months after Royal Assent.

that, rather than commencing 67.


ACCI is supportive of this proposal, noting that it will be useful to have access to appropriate information resources / guidance material in relation to these types of matters including in relation to the FWC's process and procedures in dealing with these types of matters when the provisions commence, so that employees and employers are able to effectively interact with the jurisdiction.

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68.

ACCI does not otherwise propose any amendments to the provisions relating to the availability of 'stop orders' in relation to sexual harassment within the FW Act.

11 https://billshorten.com.au/qovemment-puts-workplace-bullies-0n-notice 12 AHRC, Respect@Work Report, p.525.
I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • 7.

69.
69.

VALID REASON FOR DISMISSAL Item 10 of the Bill would add a new legislative note that informs readers that sexual harassment in con nection with the employee's employment can be a val id reason for dismissal, as outlined in the highlighted portion of the below: 387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: (a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and Note: For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal: (a) the person sexually harasses another person: and (b) the person does so in connection with the person's employment.
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As noted in the Explanatory Memorandum:13 The FWC will continue to exercise its existing discretion in considering whether a valid reason is established and whether a dismissal was harsh, unjust or unreasonable in all the circumstances.

This includes consideration of whether the employee was notified of the reason for dismissal and given an opportunity to respond, as well as other matters.

71 .

This Note seeks to give effect to Recommendation 30 of the Respect@Work report.

72.
72.

This amendment largely reflects the position under current case law, however seeks to make the position clear on the face of the legislation.

73.

As the Respect@Work report highlighted, sexual harassment has not been considered a val id reason for dismissal in all cases.

For example, in McDonald v TNT Australia,14 the applicant was dismissed for conduct involving unwanted lewd, offensive remarks with a clear sexual innuendo towards a younger female worker.
It was the type of conduct that would be recognised as sexual harassment as identified in the AHRC's Fourth National Survey on sexual harassment in Australian workplaces.
The Commissioner found that while the applicant had made comme nts with a sexual undertone, he was unable to conclude that the conversation, or the manner in which it occurred was overtly sexual or that it constituted harassment in any form, and that the final remark of the employee "I better leave before it gets too dirty" was "inappropriate, clumsy and unnecessary" but not serious enough to warrant a valid reason for dismissal.

13 Explanatory Memorandum, para 33, page 14.


14 [2014] FWC 4246 I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • 74.
In another matter,15 an employee was dismissed for poor performance, and was later found to have downloaded "hard core" pornographic material on his work mobile and laptop repeatedly.

His laptop also contained various images and a video of himself performing sex acts.
The Commission heard the man "failed to treat other people with respect, failed to organise his time and concentrate on his work while at work, failed to ensure compliance with regulatory req uirements, and failed to ensure that the workplace was free of sexual discrimination harassment", and "was a person who simply did not know the boundaries between what was appropriate or inappropriate cond uct in the workplace".

However, the Commission found there to be no valid reason for the dismissal.
It ordered the employer to pay $10,000 in compensation.

75.
75.

Decisions such as these send mixed message to employers, employees and society about what sexual harassment is and to what extent it can be acted on, including in compliance with an employer's policy on the matter, without the risk of either an unfair dismissal claim which may resu lt in rei nstatement of the perpetrator, or compensation (either through a formal order or in conciliation as a negotiated settlement), or risks of sexual harassing conduct conti nuing.

76.
76.

The addition of a legislative note may go some way to support consistency in decision making and employer confidence in addressing sexual harassment through termination of employment where appropriate, particularly where th is may be necessary to provide for a safe and harassment free workplace.

77.
77.

There are of course other issues with the operation of the unfair dismissal regime when it comes to matters involving sexual harassment which can resu lt in unnecessary and inappropriate delays to employers taki ng action, perpetuating risks and exposures.

78.
78.

This includes, for example, that reinstatement remains the primary remedy for unfair dismissal in sexual harassment cases, even where the employee, following a thorough and independent investigation, has been found to have engaged in sexual harassment against another employee.

This is particularly concern ing given that perpetrators of sexual harassment are most commonly a co-worker at the same level.16 79.
Another key difficulty raised by our unfair dismissal laws which has the potential to impact an employer's capacity to take necessary action in relation to sexual harassment is the risk of the Fair Work Commission to, despite having fou nd there to be both a valid reason to dismiss an employee and that procedural fairness was afforded, deem a dismissal as "harsh" due to the offending employee's personal or economic circumstances, and to then award a remedy such as compensation and / or reinstatement.
ACCI provided a number of examples in our submission to the National Inquiry into Sexual Harassment in Australian Workplaces.

80.

The message such decisions send is that where an employee seriously breaches an employer's policy or engages in clear sexual harassment, if they possess certain 15 Croft v Smarter Insurance Brokers Ply Ltd [2016] FWC 6859.

16 AHRC, Everyone's Business, Fourth national survey on sexual harassment in Australian workplaces, 2018, page 8.
I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • personal circumstances for example if they are older or have limited employment prospects, these might be elevated above considerations around the valid reason for dismissal, and the flow on effects for the business, and the remainder of the workforce, including any people who may have been harassed or damaged by the conduct.
Again, employers are not provided with any level of certainty about how they should go about dealing with such issues without either the risk of a costly claim, or real and unacceptable risks through an unacceptable perpetuation of harassing cond uct.

81 .
81 .

ACCI maintains that these issues should be addressed, however the addition of a legislative note as proposed in the Bill may act as a first step in positively reforming the unfair dismissal regime to ensure employers are empowered to take appropriate action against sexual harassment, where termination is appropriate.

Amended definition of 'serious misconduct' 82.


ACCI notes that on 8 July 2021 the Government introduced the Fair Work Amendment (Respect at Work) Regulations 2021 , to amend the definition of serious misconduct in the Fair Work Regulations 2009 to include sexual harassment.

83.

This gives effect to Recommendation 31 of the Respect@Work report.

84.

Conduct such as an employee being intoxicated at work, or engaging in fraud , theft and assault are already considered to be serious misconduct.
It is entirely appropriate that the definition of serious misconduct be aligned with community standards and reflect that sexual harassment may be indeed be conduct that is deemed serious enough to warrant summary dismissal.

85.
85.

As noted in the Respect@Work report, 'while this will not mean sexual harassment always constitutes serious misconduct, this legislative clarification will assist in ensuring that sexual harassment is understood as conduct that is potentially serious enough to be inconsistent with the continuation of the employment'.

17 86.
17 86.

While this amendment is not before this Committee, ACCI commends it as crucial to improve the operation of the unfair dismissal regime and enable employers to more confidently act on forms of cond uct that would be recognised as either unlawful under the SD Act or conflict with other legal obligations.

It would also provide more clarity to employers, workers and the comm unity more broadly about what is not appropriate behaviour at work.

87.

ACCI supports this as a sensible reform.


17 AHRC, Respect@Work Report, p.532.

I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • 8.

88.
88.

AHRC FUNCTIONS Items 78 - 83 provide that the existing functions of the AHRC would extend to the new express prohibition against harassment on the grounds of sex that would be inserted by the Bill.

Reporting on law reform 89.


Item 79 would insert a new function (paragraph 48(1 )(gaaa)) which provides that the AHRC on its own initiative or req uested by the Minister, report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relati ng to discrimination involving harassment on the ground of sex.

Whi le ACCI notes that other independent statutory organisations similar to the AHRC (i.e.
with concil iation and court intervention functions), appropriately, are not empowered by legislation to make recommendations about the very laws that they are empowered as an independent third party to investigate, resolve and potentially intervene in court proceedings, these provisions mirror the existing functions in paragraph s.48(1 )(g) of the SD Act.

90.

ACCI does not propose any amendments to items 79 of the Bill, relati ng to new paragraph 48(1 )(gaaa).

Preparing and publishing guidelines 91 .


Item 81 would insert a new function (paragraph 48(1 )(gaa)) which provides that the AHRC may prepare, and publish in such manner as the AHRC considers appropriate, guidelines for the avoidance of discrimination involving sexual harassment or harassment on the ground of sex.

Th is mirrors existing functions of the AHRC as set out in s.48(1 )(ga) of the SD Act (i.e.
that the AHRC is already empowered to make such guidelines in relation to other matters the SD is concerned with, such as the avoidance of discrimination on the ground of sex or involvi ng sexual harassment, etc).

92.

ACCI does not propose any amendments to item 81 of the Bill, relating to new paragraph 48(1 )(gaa).

Intervening in court proceedings 93.


Item 83 would insert a new function (paragraph 48(1 )(gc)) which provides that the AHRC may, when it considers appropriate to do so, with leave of the court hearing the proceedings and subject to any conditions imposed by the court, intervene in proceedings that involve issues of discrimination involving harassment on the ground of sex.
While noting that there may be issues of procedural fairness and natural justice at play where the same organisation that, as an independent third intervenes in related court party, confidentially concil iates a dispute then proceedings, th is mirrors the existing functions in paragraph 48( 1 )(gb) of the SD Act.

94.

ACCI does not propose any amendments to Item 83 of the Bill, relating to new paragraph 48(1 )(gc).
I ACCI Submission, Senate Committee Inquiry into Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, July 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 37 Australian Chamber of Commerce and Industry • 9.

95.
95.

EXTENSION OF COMPASSIONATE LEAVE TO MISCARRIAGE Items 8 and 9 of the Bill seek to vary an employee's existing entitlements to compassionate leave in the FW Act to enable an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or employee's current spouse or de facto partner, has a miscarriage.

96.

Miscarriage is a tragic event for any family.


While recognising that most employers are supportive of their employees, particularly where they have suffered such a tragic loss, this proposed change is a sensible and appropriate extension to the existing compassionate leave provisions.

97.

While recogn ising that the pain of miscarriage can never be repaired through a workplace entitlement, ACCI hopes that such a change will provide some peace of mind for employees in these traumatic circumstances.
98.

Such a change will also build on the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020, which extended compassionate leave and unpaid parental leave to eligible employees who experience the birth of a still-born child, infant death or premature birth.

99.

ACCI supports this reform and does not propose any amendments to Items 8 and 9 of the Bill.
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