Changes to Sexual Harassment Laws - Employer Obligations

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Published by Preston Law on 06/04/2023

As of 6 March 2023, all persons and employers who are conducting business or undertaking business will now be subject to a positive duty to take ‘reasonable and proportionate measures’ to eliminate unlawful sex discrimination, including sexual harassment, as far as possible.

These changes have been implemented through the Anti-discrimination and Human Rights Legislation Amendment (respect at Work) Bill 2022.

It is important for employers to realise that this protection extends to any worker, employee, contractor, volunteer, future worker, work experience student or anyone conducting a business or undertaking business.

What is Sexual Harassment?

Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated. It has nothing to do with mutual attraction or consensual behaviour.

Examples of sexual harassment can include:

  • inappropriate physical contact, such as unwelcome touching
  • staring or leering
  • a suggestive comment or joke
  • a sexually explicit picture or poster
  • an unwanted invitation to go out on dates
  • a request for sex
  • intrusive questioning about a person’s private life or body
  • unnecessary familiarity, such as deliberately brushing up against a person
  • an insult or a taunt of a sexual nature
  • a sexually explicit email or text message.

What does that mean for an employer?

If any staff member/employee is subjected to sexual harassment, the employer can be held liable for the conduct if the employer fails to show that all reasonable and proportionate measures have been taken to prevent and eliminate sexual harassment.

Employees will now have the ability to seek an order from the Fair Work Commission, for compensation payment for loss of remuneration, or a requirement for the employer to perform certain acts to rectify the loss or damage caused to that employee.

In addition to the impact that this may have to the reputation of the employer, there are significant penalties that may apply. Compensation can be awarded to employees/complainants and is unlimited and in addition, penalties of up to $16,500 for individuals and $82,500 for companies could be applied.

What can employers do to protect themselves?

Due to the significant impact that these changes may have on employers, it is important that employers are taking all reasonable and proportionate measures to prevent sexual harassment and discrimination within the workplace.

What is considered ‘reasonable and proportionate measures’ is discretionary in the circumstances and will depend on the circumstances of each employer and incident. Therefore, employers need to proactively implement measures to prevent and mitigate the occurrence of sexual harassment and discrimination, and this extends beyond having a written policy.

Employers should be:

  • Ensure that any sexual harassment or discrimination policies are clearly written, easily accessible and available to all staff;
  • Ensure that there is a clear policy that prohibits sexual harassment and creates a safe and clear process where allegations of sexual harassment can be properly reported and addressed;
  • Implementing comprehensive and interactive training for all new and existing employees around the policy as well as mandatory refreshers;
  • Ensuring and monitoring the workplace culture to ensure that it is respectful and safe;
  • Consider implementing a sexual harassment prevention plan or sexual harassment officer; and
  • Encourage open communication where employees feel comfortable about reporting sexual harassment, and ensure that any complaints are taken seriously, confidentially, and handily promptly.

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