It’s been a long while since our last article, but our recent experience with a workplace investigation alleging sexual harassment has reminded us that not all employers are ready for new sexual harassment laws.
The Respect@Work Report observed that our legal system was not effectively preventing sexual harassment because it was focused on addressing and responding to conduct that had already happened.
The federal parliament responded with changes to legislation that mean that all employers now have a positive duty to eliminate sexual harassment. So, what does this mean?
Positive duty under the Sex Discrimination Act
Under changes to the Sex Discrimination Act 1984 (Cth) from 12 December 2022, an employer or person conducting a business or undertaking (PCBU) must take “reasonable and proportionate measures” to eliminate, as far as possible:
sexual harassment,
sex based harassment,
conduct that subjects a person to a hostile work environment, and
victimisation.
Does this positive duty look familiar? Under work, health and safety legislation since 2012, PCBUs have had a positive duty to ensure the health and safety of workers and other people at the workplace so far as is reasonably practicable. The Sex Discrimination Act expressly acknowledges that the new positive duty does not limit or otherwise affect a duty that an employer or PCBU has under work health and safety legislation.
The meaning of ‘reasonable and proportionate measures’ under the new sexual harassment laws will vary between employers and PCBUs according to their circumstances and size, but will include implementing policies and procedures, monitoring employees’ use of email and computer systems, regularly delivering training and education and providing appropriate support.
It is clear that an organisation must proactively prevent its employees, workers, agents, and the organisation itself, from engaging in discriminatory/harassing conduct. An organisation is also responsible for protecting its workers from being subject to discriminatory/harassing conduct by third parties, such as customers and clients.
Sex based harassment prohibits unwelcome conduct of a demeaning nature on the ground of sex; it’s designed to address sexism. The hostile work environment prohibition is designed to capture conduct such as displaying obscene or pornographic materials, general sexual banter, innuendo and offensive jokes, which although not necessarily directed at a particular individual, can create a sexually charged or hostile environment leading to a group of people feeling unwelcome.
Role of the Human Rights Commission
From 12 December 2023, the Australian Human Rights Commission (AHRC) will be empowered to monitor and assess compliance with the positive duty including:
conducting inquiries and providing recommendations for compliance,
issuing compliance notices, and
applying to federal courts to direct compliance with a compliance notice.
The AHRC will also have the power to commence inquiries, on its own motion, into alleged systemic unlawful discrimination.
Changes to the Fair Work Act
On 6 March 2023, an express prohibition on sexual harassment commenced under the Fair Work Act 2009 (Cth). A contravention will attract penalties in the same way as the general protections jurisdiction and employees will be entitled to seek damages.
Employers will be vicariously liable for contravening conduct unless they can show that they took all reasonable steps to prevent it.
The Fair Work Commission now has greater powers to deal with workplace sexual harassment. In addition to its pre-existing ‘stop sexual harassment order’ powers, the Commission can deal with disputes about sexual harassment by conciliation, mediation or making a recommendation or expressing an opinion.
Where a dispute can’t be resolved these ways, the Commission may also be able to deal with the dispute by arbitration if the parties agree. If this happens, the Commission can make an order for compensation or lost wages or requiring a person to do something that’s reasonable to remedy any loss or damage suffered.
Applications to the Commission can be made by a person or group of people alleging sexual harassment (such as a worker or group of workers), or an industrial association, such as a union, on behalf of their member or members.
The Fair Work Ombudsman will also be empowered to prosecute contraventions.
What should you do?
When was the last time you reviewed your policies or conducted workplace training? Have you conducted a risk identification and assessment process to understand what causes sexual harassment and where it could occur in your organisation? Have you assessed and analysed the nature, seriousness and likelihood of harm?
If you have any questions, or require any assistance, please don’t hesitate to contact us.