The Fair Work Amendment (Respect at Work) Regulations 2021 have now been registered, with a key amendment for employers now in effect.

Employers should be aware of the addition of sexual harassment to the list of conduct falling within the definition of ‘serious misconduct’ in the Fair Work Regulations. Sexual harassment will have same meaning as it does in section 28A of the Sex Discrimination Act 1984. This amendment took effect on 10 July 2021.

This will give effect to recommendation 31 of the Australian Human Rights Commission’s landmark [email protected]: National Inquiry into Sexual Harassment in the Workplace. The [email protected] Report observed that the intention of recommendation 31 was to provide clarification to assist in ensuring that sexual harassment is understood as conduct that is potentially serious enough to be inconsistent with the continuation of the employment and warrant summary dismissal.

Employers should note that this will not mean that sexual harassment always constitutes serious misconduct, as it will likely depend on the seriousness of the conduct as is the case for other conduct already expressly outlined as serious misconduct in the regulations (e.g. theft, intoxication). This means that if challenged, the validity of the grounds for termination without notice will be independently assessed by the Fair Work Commission.

The Amendment Regulations make a number of other non-substantive amendments to the Fair Work Regulations, e.g. amending headings and providing for the FWC’s usual processes concerning fee waivers to apply to applications for stop sexual harassment orders. These will take effect in the event of the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill passing.

The Bill, which was introduced into Parliament on 24 June 2021, has been referred to the Senate Education and Employment Legislation Committee for inquiry and report by 6 August 2021.

The Committee is currently holding public hearings into the Bill.

Support for resources and energy employers

AMMA has publicly acknowledged that ‘mining’ (including oil and gas) is referenced throughout the AHRC [email protected] report as an industry with amongst the highest prevalence of workplace sexual harassment.

Specifically, the report highlights that male-dominated workplaces (most notably the construction and mining industries) have a higher risk of experiencing sexual harassment due to factors including the gender ratio, over-representation of men in senior leadership roles, the nature of the work being considered ‘non-traditional’ for women and masculine workplace cultures.

“In mining, the rate of sexual harassment overall was 40%, higher than the rate across all industries of 31%. Women were more than twice as likely as men to be sexually harassed (74% compared to 32%),” the report said.

AMMA’s longstanding position is the industry must work diligently to understand and address the specific drivers of sexual harassment in our workplaces.

Encouragingly, these are all areas in which the industry, led by the Australian Women in Resources Alliance (AWRA), an AMMA initiative, has been making significant improvements in recent years.

Specific initiatives delivered by AWRA / AMMA to assist members in addressing workplace sexual harassment include:

  • Delivery of AMMA’s Appropriate Workplace Behaviours training to member company employees, with a strong focus on discrimination, sexual harassment and inclusive workplace culture;
  • Reviewing members’ workplace policies and procedures to ensure best practice in regards to bullying and harassment, psychological safety and disciplinary action;
  • Undertaking the AWRA Inclusive Safety Audit in member company workplaces to examine the actual and perceived physical and psychological safety of their employees. The audit covers physical safety, confidence, personal safety (including bullying and harassment) and psychological safety; and
  • Development of policies, projects and campaigns to drive cultural change, education and awareness to drive more diverse, inclusive workplaces free from sexual harassment.

AMMA looks forward to continuing working with the Government and its members to implement further recommendations across education, accreditation and training to build skills and capacity on preventing and responding to workplace sexual harassment.

To learn how AMMA can support your organisation in addressing workplace sexual harassment and related areas, contact [email protected].