The recent changes to industrial relations laws in Australia also saw changes to laws relating to sexual harassment in the workplace. Understanding and complying with these changes is critical for all businesses and organisations (note that small businesses are NOT exempt from these changes).
The key changes:
- The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Respect at Work Act 2022) introduces a new positive duty on employers to prevent sexual harassment(refer details below), expressly prohibits hostile workplace environments and expands the powers of the Australian Human Rights Commission (AHRC).
- The Fair Work Commission has been given expanded powers to deal with sexual harassment cases/issues.
- Employers need to be proactive in preventing sexual harassment. Just having a policy and doing some training is not sufficient to meet the obligations.
Hostile Environments
The amendments introduce an express prohibition to protect people from hostile workplace environments. Businesses are required to stamp out any workplace behaviour which has the potential to result in an offensive, intimidating and humiliating environment for people of one sex.
Sexual harassment in the workplace can be more likely to occur when the environment is sexually charged or hostile, creating a feeling of unwelcome or exclusion by a person, even if the specific conduct is not directed at an individual. Given that the increased protections do not require that the conduct is directed at a specific person, prohibited conduct may include conduct that generally results in the creation of an environment that is offensive, intimidating or humiliating for people of one sex.
This may include, for example, things such as:
- general sexual-related “banter”
- innuendo and/or offensive jokes
- displaying obscene/pornographic materials, or
- petty nuisance phone calls that may be creating a hostile workplace environment for either sex, even when not necessarily sexual in nature.
Further changes to the wording of the Act means that the provisions broadly cover any conduct that occurs in the workplace, including conduct by clients, customers and contractors.
What does the “positive duty” on employers mean?
The new positive duty obligation upon employers requires employers to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based discrimination and harassment, hostile workplace environments and victimisation.
In practice, the new positive duty will look different across businesses/organisations, depending on the circumstances. Organisations should periodically undertake risk assessments to identify ‘hotspots’ for prohibited conduct and manage associated risks.
What do I need to do?
In particular, to ensure compliance with the positive duty to eliminate sexual harassment, employers should:
- Undertake a formal audit or risk assessment to understand the factors and exposure points in your business that increase the risk of sexual harassment in the workplace. This could be done on a similar basis to work health and safety risk assessments.
- If any risks are identified, assess what “reasonable and proportionate” steps can be taken within the context of your business to address those risks, and perform these steps as soon as possible. Remember that different areas in your business may require different approaches, depending on the risk factors present within each workplace.
- Review and update policies dealing with sexual harassment to ensure they clearly set out expected standards of behaviour, including in relation to out-of-hours conduct that may be sufficiently connected to work. This may include the development of a stand-alone sexual harassment policy.
- Provide training, preferably face to face, in regards to sexual harassment and the positive duty. Training should be conducted for all staff but tailored to different groups, e.g. managers / supervisors, and frontline employees. Specific training is also recommended for those who are likely to have complaints of harassment reported to them.
- Ensure there is a robust complaints/grievance handling framework in place to deal with and manage reports of sexual harassment. This process should be clearly explained to all staff to ensure they know how to make reports.
- Encourage or require employees to make reports if they experience, witness or hear about sexual misconduct, and to speak up about key risk areas in the business. Make it clear that they will be protected from victimisation for doing so.
It is important to note that the obligations of employers relevant to these matters extend to protecting contractors, subcontractors, outworkers, apprentices, trainees, students and/or volunteers, as well as prospective workers.
Support plus Investigation/Enforcement Options
In terms of enforcement, the AHRC will from 12th December 2023 have powers to monitor and assess compliance with the new positive duty and to inquire into systemic unlawful discrimination as part of these changes.
Further, amendments to the Fair Work Act (in force since March 2023) allow an individual worker(s) or union(s) to apply to the Fair Work Commission (FWC) to make a ‘stop sexual harassment’ order and/or otherwise deal with a claim or dispute relating to these matters. These orders can be made if the FWC is satisfied there is a risk of sexual harassment continuing. The FWC can also intervene to deal with a relevant dispute by, for example, attempting mediation, conciliation, making a recommendation or expressing an opinion. If the matter continues to be unresolved, the FWC can ultimately arbitrate the matter by consent or by making a Court application.
It’s important to note also that new provisions mean a worker can seek a remedy from their employer, in addition to the alleged offender, where the business/organisation did not take all reasonable steps to prevent the sexual harassment.
In terms of support, the Australian Human Rights Commission (AHRC) has recently launched the Respect@Work website, which includes a range of resources to help employers understand and comply with the new positive duty and other obligations.
Of course, reach out to HR Success if you need further information or support.
Note that this is general information and a summary only. It is not formal or legal advice. Information is current and we believe accurate at the time of publication – 22/08/2023.