New workplace sexual harassment lawsBusiness Management
HR consultant Adrian O’Dwyer explains what the new legislation prohibiting sexual harassment and the amendments to anti-discrimination laws mean for your business.
Recent changes in federal legislation are set to make significant advancements in preventing and addressing sexual harassment in Australian workplaces. The introduction of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 and the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 aim to provide greater protection for workers, and make employers accountable for any instances of sexual harassment that occur within their workplaces.
What is sexual harassment?
According to the Australian Human Rights Commission, sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.
What are the new laws prohibiting sexual harassment?
From 6 March 2023, the Fair Work Act was amended to include a new prohibition on sexual harassment in connection with work. In addition, employers have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, unlawful sex discrimination, sexual harassment, hostile working environments and acts of victimisation.
Importantly, the prohibition relates to ‘workers’, which not only includes employees, but also includes contractors, subcontractors, apprentices, trainees, work experience students and volunteers, as well as persons seeking to become a worker.
What does this mean for your business?
The positive duty requires employers to take proactive action to address sexual harassment in the workplace as a whole rather than treating sexual harassment as an individual grievance that is responded to reactively after a complaint is made.
Employers can be held vicariously liable for the actions of their workers who engage in sexual harassment in connection with their work, unless they can demonstrate that they took all reasonable steps to prevent sexual harassment from occurring.
How do I protect my business?
It is essential that employers are proactively implementing measures to prevent and mitigate any occurrences of sexual harassment in their workplace. This includes:
- ensuring your workplace has adequate sexual harassment policies in place
- providing regular sexual harassment awareness and prevention training for all workers
- ensuring there is a robust complaints/grievance handling framework in place to deal with and manage reporting of sexual harassment.
Amendments to anti-discrimination laws
Effective 7 December 2022, the discrimination provisions contained in the Fair Work Act 2009 (Cth) were amended to include three new grounds of protection against discrimination including ‘breastfeeding’, ‘gender identity’ and ‘intersex status’. These new amendments were introduced to improve job security and gender equality by strengthening the Fair Work Act’s existing anti-discrimination protections which already prohibit discrimination based on other attributes, such as race, colour, sex, sexual orientation, age, disability and religion.
Breastfeeding in the workplace
This includes the act of expressing milk, the act of breastfeeding and the amount of time spent breastfeeding. An example of discrimination in these circumstances may include making inappropriate jokes or comments about an employee who breastfeeds or expresses milk at work.
This includes employees being treated less favourably due to physical, genetic or hormonal features which mean they are not wholly female or male; are a combination of both male and female; or are neither female nor male. Examples of discriminating against someone based on their intersex status could include deciding not to employ or promote someone based on their intersex status or bullying that person because of their intersex status.
This refers to someone’s gender-related identity, mannerisms or appearance, irrespective of the gender they were born with. Discrimination due to gender identity could be overt, such as exclusion or bullying, or less obvious, such as not using the person’s preferred pronouns.
What is discrimination?
According to the Australian Human Rights Commission, discrimination occurs when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics. This is known as ‘direct discrimination’. It is also discrimination when an unreasonable rule or policy applies to everyone but has the effect of disadvantaging some people because of a personal characteristic they share. This is known as ‘indirect discrimination’.
What does this mean for your business?
The inclusion of breastfeeding, gender identity and intersex status to the list of protected attributes in the Fair Work Act means that an enforcement mechanism is now available for employees and prospective employees who allege they have been discriminated against based on those attributes. Aggrieved individuals will now be able to lodge an application in the Fair Work Commission to resolve the matter. Existing avenues of complaint in state-based anti-discrimination tribunals are also still available.
If an employer is found to have discriminated against, or taken adverse action against a person based on the protected attributes under the Fair Work Act, they could face penalties of up to:
- a maximum of $16,500 per contravention for an individual
- a maximum of $82,500 per contravention for a company.
What should you do now?
Employers should consider the following:
- Ensure that anti-discrimination policies are updated to include the new protected attributes and that those policies are clearly communicated to all members of the workforce.
- Provide your workers with discrimination awareness and prevention training.
- Ensure there is a robust complaints/grievance handling framework in place to deal with and manage reporting of discrimination.
The information provided is not legal advice. It is intended to provide commentary and general information only. Formal legal advice should be sought on matters of interest arising from this article.
This article was first published in the Winter 2023 edition of AFG.