Further to our blog article in January 2023, we outlined the recent legislation changes based on the Respect@Work National Inquiry that the Federal Government has introduced changes to provide greater clarity of an employer’s role and responsibility towards the safety of its employees.
The Fair Work Commission’s stop bullying jurisdiction under the Fair Work Act 2009 (FW Act) has been expanded by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 so that the Commission can now receive applications for orders to stop bullying, to stop sexual harassment, or to stop both bullying and sexual harassment at work.
This month, from 6 March 2023, changes to the FW Act took effect to prohibit sexual harassment in connection with work and empower the Fair Work Commission (FWC) to deal with sexual harassment disputes.
What is Sexual Harassment
Sexual harassment occurs when:
- A person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature
- A reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person who was harassed would be offended, humiliated or intimidated
Sexual Harassment Changes
The Fair Work Act now prohibits sexual harassment in connection with work. The prohibition not only applies to employees but will also extend to any individual who performs work in any capacity, including sub/contractors, apprentices, trainees, volunteers, or potential workers.
Employers, as per the anti-discrimination legislation, will be liable for acts of sexual harassment by their employees or workers unless they have taken all reasonable steps to prevent the conduct. Should employers be found not complying with this legislation, the new prohibition will attract a civil penalty (up to $82,500 for employers).
New legislative powers allow Fair Work to manage sexual harassment disputes as per the original dispute resolution process.
If a worker alleges sexual harassment at the workplace or within their employment by another worker, they can make an application to the Fair Work Commission to deal with a sexual harassment dispute, an application of a Stop Sexual Harassment Order, which is an extension of the current anti-discrimination an anti-bullying powers.
It is important for employers to have a positive duty to take steps to prevent sexual harassment from occurring in the workplace. Victimisation can now also amount to unlawful discrimination if nothing is done about it.
What are the next steps?
In order to mitigate these types of behaviour and conduct in the workplace, we recommend the following:
- Review and update policies in place to prevent sexual harassment from occurring in the workplace
- Set out the employer’s expectations of its employees when it comes to sexual harassment
- Educating the team on Company Policies specific to Equal Employment Opportunity (EEO), Discrimination and Harassment Policies
- Conducting a policy reinduction for all company policies, and emphasising on the key points of harassment, sexual harassment and discrimination
- Improve workplace culture by making some changes in the workplace
- Ensure you have appropriate reporting procedures such as formalised grievances and complaints processes in place for people to report sexual harassment
- If a grievance is raised, a formal process is conducted and investigated in a private environment
Extra training is provided via the Fair Work Commission website, which provides Respect@Work training examples of sexual harassment, interactive case studies and how to stop sexual harassment at work.
If your business needs any help in understanding Respect@Work changes or if you need help with any other HR matter, then please contact one of our friendly HR team who will be more than happy to help you with your needs. Phone: 1300 4 ADVICE
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If you need help and support, contact us at 1300 4 ADVICE.