Legislation allowing 2 days’ compassionate leave for employees who experience a miscarriage and to prevent sexual harassment in the workplace has been introduced into the Parliament.
The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill) would amend the Fair Work Act 2009 (the FW Act) and the Sex Discrimination Act 1984 (the SD Act), with the objective to strengthen anti-discrimination and industrial relations frameworks to better protect employees from sexual harassment and other forms of sex discrimination in the workplace.
The Bill would implement the federal government’s response to a number of recommendations in the Sex Discrimination Commissioner’s [email protected] Report (the Report). In April, the federal government announced that all 55 recommendations contained in the Report were either agreed to wholly, in part or in principle.
Key proposed changes under the FW Act
The Bill would amend the FW Act to, amongst other things, provide that miscarriage (defined as the spontaneous loss of the embryo or fetus before 20 weeks’ gestation) is an occurrence allowing a national system employee to take 2 days’ compassionate leave under s 104. Currently, employees who experience miscarriage and want to take time off work would need to access personal or annual leave. Relevantly, this follows an announcement in the New South Wales budget that the state will introduce, from 1 July 2021, 5 days of leave following a miscarriage for public sector employees. The NSW government will also introduce special paid leave provisions for employees who have pre-term births.
Further, a new legislative note would be inserted into the FW Act to inform readers that sexual harassment in connection with the employee’s employment can be a valid reason for dismissal. The anti-bullying jurisdiction in the FW Act would also be amended to clarify that the Fair Work Commission can make an order to stop sexual harassment in the workplace.
Key proposed changes under the SD Act
The SD Act would be amended to create a new object clause to make it clear that in addition to the elimination of discrimination and harassment, it aims to achieve, so far as practicable, equality of opportunity between men and women. A new provision would also be inserted to explicitly state that it is unlawful to harass a person on the ground of their sex.
Further, the coverage of the SD Act would be expanded to ensure its provisions closely align with the terms used in the model Work Health and Safety law, and to protect more people from workplace sexual harassment including volunteers and interns.
The Bill would also clarify that victimising conduct can form the basis of a civil action for unlawful discrimination in addition to a criminal complaint under the SD Act. The timeframe for which a complaint can be made to the Australian Human Rights Commission would also be extended, with a complaint under the SD Act only able to be terminated if made more than 24 months after the alleged unlawful conduct took place, rather than the current 6 months.
The amendments would commence the day after assent.
- Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, Parliament of Australia website, accessed 24 June 2021.
- Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, Explanatory memorandum, Parliament of Australia website, accessed 24 June 2021.
- The NSW Budget 2021-2022, New leave provisions to support families, [media release], 22 June 2021, accessed 24 June 2021.