On 2 September 2021, legislative changes were passed to reflect recommendations made in the Respect@Work National Inquiry Report of March 2020. These amendments are aimed at strengthening and simplifying the existing legal frameworks protecting workers from sexual harassment and sex discrimination in the workplace. In this article, we explore some key implications for workplace investigators conducting sexual harassment investigations.
What are the key changes – and what do they mean for sexual harassment investigations?
1. FWC Orders to stop sexual harassment
Amendments expand the existing anti-bullying regime under the Fair Work Act 2009 (Cth) to allow for ‘orders to stop sexual harassment’ within similar parameters.
Workplace investigations are often conducted in response to complaints which first come to an organisation’s notice when an ‘anti-bullying’ application is filed with the Fair Work Commission (FWC). In practice, the anti-bullying application is often paused to allow the organisation to investigate the complaint. This is because the FWC is obliged to consider the final or interim outcomes of “an investigation into the matter that is being, or has been, undertaken by another person or body” before making orders1.
It is to be expected that sexual harassment investigations may now be conducted in similar circumstances, with the result that the findings of the investigation may have relevance not only for disciplinary action within the workplace, but also the organisation’s response to the FWC application and any orders made by the FWC.
2. ‘Harassment on the ground of sex’ unlawful
It will now be unlawful for a person to harass another person ‘on the ground of sex’. This new ground of unlawful conduct has been added to ‘sexual harassment’, recognising that harassing conduct will not always be of a ‘sexual nature’ – a necessary element for sexual harassment – even though connected with sex/gender.
While arguable that such conduct would likely fall foul of the general prohibition on discrimination on the ground of sex, this new ground is intended to ensure that sex-based harassment does not fall through the gaps where the ‘sexual’ element is missing.
The new provisions define ‘harassment on the ground of sex’ as where a person engages in ‘unwelcome conduct of a seriously demeaning nature’, 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.
Depending on the terms of reference for an investigation, this new provision may require workplace investigators to express views or make findings as to whether conduct meets the threshold of ‘unwelcome conduct of a seriously demeaning nature’ – noting that ‘demeaning’ is not defined and is to be interpreted in accordance with its ordinary meaning2. Initially, this will need to be done without the assistance of a handy body of case law to light the way.
3. Aged or historical incidents
Under the current regime, complaints for ‘unlawful discrimination’ lodged under the Australian Human Rights Act 19863 can be terminated at the discretion of the President where the complaint is lodged more than six months after the alleged discrimination took place.
The six-month timeframe has been extended to 24 months in accordance with a recommendation in the Respect@Work recommendation to reduce procedural barriers for complainants, recognising there can be complex reasons for a delay in a complaint being made.
For investigations, this change may require careful consideration of the scope of the investigation in relation to historical incidents. Historical or aged allegations are often more difficult to investigate (for example, due to an absence of available witnesses or evidence) and will sometimes be excluded from scope for reasons of procedural fairness. This legislative change may prompt organisations to include aged allegations, particularly those related to incidents within 24 months of a complaint.
As with any legislative change, the meaning of the changes will become clearer as the case law develops and this is a space that those conducting workplace investigations should watch closely.
Key takeaways
- Investigation reports and findings may have relevance not only for disciplinary action, but also the organisation’s response to an FWC application for orders to stop sexual harassment.
- Investigators may be required to determine whether substantiated conduct meets the threshold of ‘unwelcome conduct of a seriously demeaning nature’.
- The extension of the time period for unlawful discrimination complaints lodged with the AHRC may prompt organisations to include aged allegations, particularly those related to incidents within 24 months of a complaint.
1 Fair Work Act 2009 (Cth), s789FF(2)(a)
2 See Explanatory Memorandum to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth), at 143.
3 Australian Human Rights Act 1986 (Cth), s46PH(1)(b)
