Secure Jobs Better Pay Act – Key Amendments: Sexual harassment in the workplace

Our related articles: Major Changes to Workplace Laws, Secure Jobs Better Pay Bill – Key Amendments: Fixed Term Contracts and Newsflash – Paid family and domestic violence leave 

This article continues our series of articles exploring the key amendments to the Fair Work Act 2009 (Cth) (FW Act) made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (the Secure Jobs Act), and specifically explores changes to sexual harassment obligations for employers now included in the FW Act and the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (the Respect at Work Act).

Secure Jobs Act

Prohibition of sexual harassment

A person is now expressly prohibited from sexually harassing another person in the workplace. The scope of the prohibition extends to all ‘workers’, as defined in the Work Health and Safety Act 2011 (Cth), being a person who carries out work in any capacity, including work as an employee, contractor, subcontractor, outworker, apprentice, trainee, student and/or volunteer.

The FWC may now settle sexual harassment disputes through conciliation or arbitration. In so doing, the FWC will have the power to express an opinion that sexual harassment has occurred, make compensation orders, orders to pay lost remuneration or orders to redress loss or damage.

This prohibition and disputes framework took effect 6 March 2023.

Stop sexual harassment order

There are changes relating to stop sexual harassment orders.

Under the orders, where an allegation of sexual harassment is raised, an aggrieved person (or an industrial association) may apply to the FWC to make a stop sexual harassment order and/or otherwise deal with the dispute.

Two or more aggrieved persons can make an application to the FWC jointly, allowing the FWC to deal with multiple parties together where appropriate. Additionally, a union now has the ability to make an application on the aggrieved persons behalf.

Where the FWC is satisfied that the aggrieved person has been sexually harassed and there is a risk that they will continue to be sexually harassed, any order that the FWC considers appropriate may be made to prevent the aggrieved person from being sexually harassed.

Contravening a stop sexual harassment order may subject the person to whom the order is issued to a civil penalty.

Vicarious liability

Where an employee sexually harasses another person contravening the prohibition in the FW Act, the employer will be taken to have also done that act unless the employer can prove that it took all reasonable steps to prevent the employee from doing that act.

Anti-discrimination

The anti-discrimination provisions within the FW Act have been expanded with additional protected attributes – breastfeeding, gender identity and intersex status. The changes bring the FW Act into line with other anti-discrimination legislation.

Respect at Work Act

Positive Duty

The Respect at Work Act introduces a positive duty for employers to take reasonable and proportionate measures to eliminate, as far as possible, conduct that includes: sexual harassment, harassment on the ground of sex, discrimination on the ground of a person’s sex, conduct that subjects a person to a hostile workplace environment on the ground of sex, or acts of victimisation that relate to complaints, proceedings, assertions or allegations in relation to such conduct.

The positive duty means that employers must proactively take steps to prevent conduct from occurring in the first place, as opposed to simply responding to conduct that has already occurred.

In considering whether an employer has taken reasonable and proportionate measures, relevant factors include the size, nature and circumstances of the organisation, its resources and the practicability and cost of steps to eliminate the conduct.

The positive duty does not only apply in terms of employees, but to all workers in the relevant business or undertaking.

The Respect at Work Act changes the definition of “harassment on the ground of sex” under the Sex Discrimination Act 1984 (Cth). It is no longer defined as unwelcome conduct of a “seriously demeaning nature” rather it is now unwelcome conduct of a “demeaning nature” with the word “seriously” omitted. The purpose of this change is to ensure the provision no longer imposes an unnecessarily high threshold on complainants, responding to recommendations in the Respect at Work report.

Implications for Employers

Employers should assess what steps may need to be taken in order to prevent and prohibit sexual harassment within the workplace. To that end, employer’s should be careful to ensure that the prevention of sexual harassment is considered in their work, health and safety policies and procedures. Policies and procedures should be reviewed and updated regularly and employees should also participate in regular associated training.

In addition, employers should review and update policies and procedures to ensure discrimination and harassment are clearly prohibited and apply the now broad definition of ‘worker’ that is utilised within the FW Act, as opposed to only employees.

When reviewing a sexual harassment policy, employers should have regard to a code released by the Australian Human Rights Commission titled “Effectively preventing and responding to sexual harassment: A Code of Practice for Employers” (the Code). The Code provides advice to employers on the essential elements of a sexual harassment policy such as a strong opening statement on the organisation’s stance on sexual harassment and an outline of the organisation’s objectives regarding sexual harassment.

Key take aways

Having regard to the recent legislative changes, it is important for employers to ensure that their policies relating to sexual harassment in the workplace are up to date and best practice.

It is also important for employers to ensure that regular training is provided to all employees in relation to appropriate workplace behaviour.

Our Employment, Workplace Relations, and Safety group at McCabes Lawyers is well placed to assist employers with advice, policy updates and training relating to sexual harassment obligations for employers. Feel free to get in touch.