Workplace Sexual Harassment

Workplace Sexual Harassment – creation of a new positive duty

On 27 September 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Bill) was introduced to the House of Representatives. The Bill, which is yet to be passed, seeks to implement a further seven of the Report’s recommendations (with some recommendations having already been implemented). It is expected to significantly strengthen Australia’s regulatory framework in respect of sex discrimination, and in particular, sexual harassment.

The New Positive Duty

The centrepiece of the Bill is the introduction of a positive duty to prevent sex discrimination and sexual harassment.

The Bill proposes to amend the Sex Discrimination Act 1984 (Cth) (SD Act) to introduce a new positive duty for all employers and persons conducting a business of undertaking to take ‘reasonable and proportionate measures’ to eliminate, as far as possible, unlawful sex discrimination, including sexual harassment, sex-based harassment, hostile work environments and victimisation. This duty will coexist with existing duties under model work health and safety laws, including the duty of employers and PCBU’s to provide a safe working environment for workers, so far as reasonably practicable.

The Australian Human Rights Commission  concluded in the Respect@Work report that a positive duty shifts the burden from individuals making complaints to employers taking proactive and preventative action. As the positive duty is an ongoing duty, it shifts the emphasis from a complaints-based model to one where employers must continuously assess and evaluate whether they are meeting the requirements of the duty.

The introduction of the positive duty will require that all employers adopt a proactive (rather than reactive) approach to the prevention of all forms of sex discrimination. Previously, such an approach was only applied in the context of a defence to vicarious liability, where the employer has been required to demonstrate that it took ‘all reasonable steps’ to stop the alleged conduct from occurring.

Under this new duty, it will be imperative that employers adopt preventative measures to address sex discrimination and sexual harassment in the workplace.

Workplace Sexual Harassment – What can employers do?

To ensure that you are taking ‘reasonable and proportionate measures’ to eliminate sexual harassment in the workplace you must have;

  1. Clear well written policies that outline what sexual harassment is and that it is unlawful.
  2. The polices accessible to all employees both in the content and where to find them.
  3. Training to support the policies and provide full details of what sexual harassment is, how it happens, that it is unlawful and what do do if an employee is subjected to or witnesses sexual harassment in the workplace and what organisations and HR professional must do when complaints of sexual harassment in the workplace are received.
  4. A trusted and accessible reporting mechanism for victims and witnesses
  5. A professional and timely investigations when complaints of sexual harasmemet in the workplace are made.

Having these 5 elements in place will not only go to satisfy your duty of care to your employee and satisfy the positive duty to ‘reasonable and proportionate measures’ to eliminate sexual harassment in the workplace.

In addition you will create a culture that does not except sexual harasmemet in the workplace and will encourage victims and witnesses to come forward.

Workplace Sexual Harassment – NOW is the time to act,

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Other recommendations from the Respect@Work report that have already been implemented include;

FWC sexual harassment ‘stop orders’ – to give workers access to a fast, low cost, informal mechanism to deal with complaints. Changes to the Fair Work Act will enable the FWC to make an order to stop sexual harassment in the workplace, as part of the FWC’s existing anti-bullying jurisdiction. As with a bullying order, the orders are intended to prevent the risk of future harm.
Fair Work Act 789FC (1)

Sexual harassment can be a valid reason for dismissal – the amendments make it clear that sexual harassment can be a valid reason in determining whether a dismissal was harsh, unjust or unreasonable. Fair Work Act s789FD (1)

This follows on from recent changes to include sexual harassment in the definition of ‘serious misconduct’ in the Fair Work Regulations 2009 (Cth).

AWPTI – workplace investigation and training national wide and internationally through the International Workplace Management Institute (New online programs coming soon)

Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations