Section 2: The current context for this Inquiry The Fair Work Act does not explicitly prohibit sexual harassment. However, some protections against sexual harassment in the workplace may apply through other provisions, including general protections against adverse action on the basis of a workplace right,45 general protections against adverse action on the basis of sex,46 the anti-bullying jurisdiction,47 unfair dismissal48 and unlawful termination on the ground of sex.49 Australia’s WHS laws are based on the model Work Health and Safety Act, model WHS Regulations and model Codes of Practice (model WHS laws) in all states and territories, except in Victoria and Western Australia (which have their own WHS schemes). Under the model WHS laws, a ‘person conducting a business or undertaking’ has a primary duty of care to ensure, so far as is reasonably practicable, the physical and psychological health and safety of workers.50 These laws therefore place a duty on employers to prevent sexual harassment, as a risk to workers’ health and safety. However, there is no express definition of sexual harassment in the model WHS laws, or Regulations or model Codes of Practice that focuses primarily on how to manage psychological health risks or hazards.51 A consistent theme emerging from submissions and consultations was that the interaction between the schemes is complex and confusing for both victims and employers to understand and navigate. Changes are required to provide greater clarity. 74 Section 5, ‘The legal and regulatory framework’, provides a detailed overview of these frameworks, including proposals to strengthen elements of Australia’s response to the issue. 2.4 Changing nature of work Forms of labour such as domestic work, freelance work or work in the gig economy (such as car share or food delivery) lack legislative protections and/or access to well-equipped [human resources] departments.52 The nature of work has fundamentally transformed since the introduction of the Sex Discrimination Act. Traditional definitions of employment and sexual harassment have failed to keep pace with the evolving nature of work in the 21st century. This section considers two particularly significant forces that have shaped the nature of work: • the changing nature of work and work arrangements • technological change, including the ways in which increased connectivity of workers and workplaces have changed when, where and how work is performed. These changes are not unique to Australia. They are part of global trends that affect workforces around the world. By proactively addressing these issues, Australia has the opportunity to take on a leadership role at an international level.