MV Law special counsel Alison Spivey has welcomed changes to the Fair Work Act that will come into effect on 6 March. Photo: Liv Cameron.
Canberra employers and business owners will need to have their ducks in a row or face a greater risk of claims and financial penalties in relation to sexual harassment in the workplace.
Sexual harassment in the workplace, and what employers and business owners are required to do to in respect of such behaviour, has been a hot-button issue for many years, and from 6 March 2023, changes to the Fair Work Act 2009 relating to sexual harassment in the workplace will take effect.
Under the changes, there will be a new prohibition on sexual harassment in connection with work, which will supplement the existing stop sexual harassment orders jurisdiction of the Fair Work Commission.
The changes to the act are in addition to those implemented by the Respect@Work legislation in December 2022, which included the introduction of the positive obligation on employers to take “reasonable and proportionate measures” to prevent sex discrimination, including sexual harassment in the workplace, and increased powers for the Australian Human Rights Commission (AHRC) to address systemic sexual harassment.
The laws aim to provide employees with greater protection from sexual harassment in the workplace.
While the changes will take place from 6 March, the extended powers of the AHRC will not come into effect until December 2023, giving employers time to ensure they are compliant with their obligations.
Employment lawyer and Special Counsel at MV Law Alison Spivey says the changes will require employers and business owners to take proactive steps to prevent sexual harassment in the workplace or face a greater range of claims and potential financial penalties.
Employers will be required to create and implement policies and procedures around sexual harassment and provide regular training and education for all staff, including managers. They will also be expected to respond appropriately to allegations of sexual harassment and provide appropriate support to victims.
Ms Spivey says while many employers already make it clear that sex discrimination and sexual harassment will not be tolerated in the workplace, until now, there has been no obligation on employers to establish frameworks to manage and prevent it.
“Previously, whether an employer took proactive steps to prevent sexual harassment in the workplace, including implementing policies, was, for the most part, optional, and typically became relevant only if someone made a sexual harassment claim and the case came before a court or tribunal,” she said.
“It’s no longer at their discretion; they have to do it.”
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She said for some employers, while there might be a greater level of legal exposure because of the changes as there are more avenues available to seek to address sexual harassment, it will be business as usual.
“For others, the changes may impose a larger burden, particularly if they are starting from a lower base in developing their framework for managing sexual harassment in the workplace.”
Perpetrators of sexual harassment and employers that do not take reasonable steps to guard against sexual harassment could face significant financial penalties, while harassed workers may be entitled to compensation and adequate support.
Ms Spivey says understanding the impact of sexual harassment in the workplace and the seriousness with which such conduct is viewed has increased over time in Australia.
“What we are seeing now is further action to remove potential barriers to addressing sexual harassment in the workplace, including barriers to victims making complaints,” she said.
“The Respect@Work Report included findings to the effect that there are many potential barriers to complaints of sexual harassment in the workplace being made. One of the biggest barriers has been victims thinking they won’t be supported or believed if they do come forward.
“Overcoming these barriers will in many businesses require a shift in culture and for there to be examples of those businesses modelling good practice in response to complaints of sexual harassment so that there is confidence in the processes.”
Ms Spivey says the best way to start that cultural shift and build confidence in the processes is to educate people, including employers and their staff, that this kind of behaviour is unacceptable, and to provide victims with the mechanisms to have their concerns addressed.
The changes to the laws reflect recommendations made in the Respect@Work report published in 2020, which found the current regulatory framework failed to “incentivise employers to create harassment-free workplaces” and instead, Australia’s laws placed “the burden of addressing harassment almost entirely on the individual”.
The MeToo movement and high-profile sexual harassment cases, coupled with the Respect@Work Report, have shone a light on workplace sexual harassment in recent years and have provided the impetus for government taking further action.
Ms Spivey said it was important that business owners and employers understood what steps they needed to take within their organisations to comply with their increased obligations and, ideally, implement those steps as soon as possible.
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