Over the previous 6 months we have been keeping you updated on the progress of the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill (Bill).
For those that are hearing of this Bill for the first time, if the Bill is passed into law (which is looking more likely) it would allow employees to raise a personal grievance in respect of sexual harassment in the workplace within 12 months of the alleged action occurring, instead of the standard 90 day timeframe all other personal grievances are bound by.
The Bill has now passed the Committee of the Whole House (Committee) and is set to have its Third Reading, noting that bills are rarely rejected at this stage. Should the Bill pass the Third Reading then it will be signed by the Governor General (Royal Assent) at which point it will become law.
During the Committee National MP Paul Goldsmith and Labour MP Camilla Belich asked the introducer of the Bill, Labour MP Deborah Russell, whether the extension of time related only to sexual harassment, or whether someone could take the 12 month period and use that to pull other matters into contemplation. The introducer confirmed that the 12 month period only relates to personal grievances for sexual harassment, as opposed to other grievances like bullying for example (although she hinted that perhaps the timeframes for bullying and harassment also needed to be reviewed).
Specifically, the Bill proposes that the standard reference to a “90 day period” in section 114(3) of the Employment Relations Act 2000 (Act) is replaced with “the employee notification period”. This notification period is then further defined in a new section 114(7) as:
(a) in respect of a personal grievance under section 103(1)(d) [personal grievance for sexual harassment], the period of 12 months beginning with the date on which the action alleged to amount to the personal grievance occurred or came to the notice of the employee, whichever is later:
(b) in respect of any other personal grievance, the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is later.
The Education and Workforce Committee initially queried whether the Bill is retrospective, and it has since been confirmed that it is not retrospective. This means that any personal grievance for sexual harassment seeking to rely on this new timeframe would need to show that the sexual harassment has occurred, or has ‘come to the notice of the employee’, on or after the date the Bill becomes law (the day after Royal Assent in this case).
During the Hansard debates, Russell acknowledged that there would be grey areas that the Employment Relations Authority would need to sort out such as when the sexual harassment in fact came to the notice of the employee, or if a minor incident of sexual harassment occurs after the date the Bill becomes law but follows several previous serious events (noting that evidence of previous events can constitute a pattern of behaviour which could support a finding that the last event was itself an act of sexual harassment).
Should the Bill pass the Third Reading, which is likely, Royal Assent is usually granted within 7 days. We recommend that employers review and update their workplace policies and also the ‘plain language explanation’ section of their employment agreements which sets out the timeframes for raising personal grievances under the Act.
Please let us know if you require any assistance with this, we are happy to help.
