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In response to the widespread cultural issue of sexual harassment in the workplace in Australia, parliament has passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, which has now commenced. The changes took effect on 10 September 2021. Therefore, it is essential for you as an employer to be aware of these changes. This article will break down some of the changes that took place.

Three key changes occurred to the Fair Work Act through the amendment. Namely, the inclusion of sexual harassment in the anti-bullying regime, its definition as serious misconduct, and compassionate leave for miscarriage.

Inclusion of Sexual Harassment in the Anti-Bullying Regime

When workplace bullying occurs, a worker can now apply to the Fair Work Commission for an order to stop bullying. Consequently, the Commission can make any order they deem appropriate to stop the bullying. However, this does not include monetary compensation. Indeed, bullying is when individuals or groups repeatedly behave unreasonably towards a work colleague, risking their health and safety. A breach of the bullying order may be heard in Court and lead to a monetary punishment. 

The changes include sexual harassment as a form of bullying. They allow the Fair Work Commission to make an order to stop sexual harassment. To make the order, the court must be satisfied that sexual harassment has occurred, and there is a risk that the employee will continue to sexually harass the worker. 

Sexual harassment is when a person either makes an unwelcome sexual advance or request for sexual favours. It also includes engaging in other unwelcome conduct of a sexual nature to another person. It is important to note that sexual harassment does not have to occur at work to make an order. 

Sexual Harassment Is Now Serious Misconduct

Serious misconduct is typically a ground for summary dismissal. Serious misconduct predominantly includes conduct that causes a serious or imminent risk to the health or safety of a person. It can also include conduct that may impact the reputation of the business. Parliament has now legislated sexual harassment to fall within the definition of serious misconduct. However, there is still room for the Fair Work Commission to decide whether a dismissal was valid. They can determine whether it was harsh, unjust or unreasonable in all the circumstances. 

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Compassionate Leave for a Miscarriage

Furthermore, employers must pay compassionate leave if someone from an employee’s immediate family either develops an illness or injury that is a serious threat to their life or has died, or if they had a stillborn child. 

The Fair Work Act now requires that you as an employer provide compassionate leave if the employee or employee’s spouse (or de facto partner) has a miscarriage. This provision does not apply to a former spouse or former de facto partner of the employee having a miscarriage. This leave is for two days and is unpaid for casual employees. 

Key Takeaways 

As of September 2021 have been three key changes to the Fair Work Act that you should be aware of. The changes include sexual harassment within the anti-bullying regime, sexual harassment as a reason for dismissal and paid compassionate leave for miscarriages.

If you need help understanding your obligations as an employer, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

What is sexual harassment?

Sexual harassment is when a person either makes an unwelcome sexual advance, makes an unwelcome request for sexual favours or engages in other unwelcome conduct of a sexual nature to another person. Sexual harassment does not have to occur at work to make an order. 

Can I take leave for a miscarriage?

Due to changes in the Fair Work Act, employees can get paid compassionate leave if they had a stillborn child. An employer must provide compassionate leave if either the employee or employee’s spouse or de facto partner has a miscarriage. This provision does not apply to a former spouse or former de facto partner of the employee having a miscarriage. This leave is for two days and is unpaid for casual employees. 

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