The amendments apply to the Fair Work Act 2009 (Cth) (‘FW Act’), the Sex Discrimination Act 1984 (Cth) (‘SD Act’) and the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’). The following article provides a concise overview of the background to these changes, the legislative reform and the impact upon you and your workplace.
Origins of the [email protected] report
In 2018, the #MeToo movement had gained considerable momentum globally, giving rise to the necessity for a national inquiry into sexual harassment in Australian workplaces. As such, the Government commissioned the Australian Human Rights Commission (‘AHRC’) to undertake the inquiry.
The findings of The Report revealed that sexual harassment in Australian workplaces is, “prevalent and pervasive”. The six legislative changes are now in force in Australian workplaces, and it is essential that employers have implemented and monitor completion of compliance training by their employees. Employee training which seeks to reduce the prevalence of sexual harassment in the workplace, should addresses the following;
- The conduct that constitutes sexual harassment
- Ensure employees understand the zero tolerance for such conduct
- Awareness that both employer and employee may be liable if sexual harassment occurs at the workplace or at a work event
- Clarity on the reporting mechanisms available in the organisation if sexual harassment occurs
- Awareness of the support available to victims of sexual harassment
Legislative changes outlined in the [email protected] report
Fair Work Act 2009 (Cth)
‘Stop orders’ for sexual harassment – From 11 November 2021, a worker may seek from the Fair Work Commission (‘FWC’) a ‘stop order’ against an individual in relation to alleged sexual harassment. In the same way that a worker may seek an order to stop bullying, an individual is now able to apply to the FWC for a ‘stop order’ in the case of sexual harassment. The definition of ‘sexual harassment’ has been inserted into the FW Act, which mirrors the definition found in the SD Act, being that one person sexually harasses another person if:
- “They make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
- they engage in other unwelcome conduct of a sexual nature in relation to the person harassed, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.”
Unlawful sexual harassment includes, but is not limited to:
- pressure or demands for dates or sexual favours;
- unnecessary familiarity – for example, deliberately brushing against a person or constantly staring at a person;
- unwanted physical contact – for example, touching or fondling;
- sexual jokes or innuendo;
- offensive telephone calls;
- offensive sexual gestures;
- unwelcome comments or questions about a person’s sex life;
- display or circulation of sexual material; or
- sexual assault
Harassment using technology includes but not limited to:
- indecent phone calls, including someone leaving a sexually explicit message on voicemail or an answering machine;
- sexually explicit emails, text messages, social media messages;
- repeated or inappropriate advances on email, social networking websites or internet chat rooms; or
- sharing or threatening to share intimate images or film of a person without consent.
Such behaviour does not have to be directed at a specific person. Sexual harassment includes behaviour that makes the working environment uncomfortable or threatening in a sexually hostile way, such as sexually offensive pictures or a culture of suggestive comments or jokes.
Sexual harassment may involve a series of incidents, or it may be a one-off incident.
Conduct which is welcome or consensual is not unlawful. It is not sexual harassment to develop real friendships with other people who you happen to work with.
Sexual harassment is a valid reason for dismissal – When considering whether an employee’s dismissal was ‘harsh, unjust or unreasonable’, the FW Act now makes clear that sexual harassment is a valid reason for dismissal.
Miscarriage leave – Miscarriage is defined as “the spontaneous loss of the embryo or foetus before 20 weeks’ gestation”. The FW Act enables employees to take up to 2 days of compassionate leave (paid for permanent employees, unpaid for casual employees) if the employee, or the employee’s current spouse or de facto partner has a miscarriage.
NOTE: The definition of ‘serious misconduct’ in the Fair Work Regulations 2009 has been amended to include sexual harassment. These changes have been made to clarify that such behaviour can justify termination of employment without notice.
Sex Discrimination Act 1984 (Cth)
Objects of the SD Act – The SD Act’s ‘objects clause’ (i.e., the clause used to guide individuals and the Court on the Act’s underlying purpose) has been amended to include: eliminate, so far as possible, not only discrimination involving sexual harassment but also “discrimination involving harassment on the grounds of sex” and to achieve, so far as practicable, “equality of opportunity between men and women”.
Scope of the SD Act – The SD Act has inserted the concepts of ‘worker’ and ‘persons conducting a business or undertaking’ used in existing Work Health and Safety Law to ensure that all workers, paid and unpaid (such as interns, student placements, volunteers, and subcontracted workers), are protected from sexual harassment. The following changes have also been made:
- Anyone who “causes, instructs, induces, aids or permits someone else to engage in sexual harassment, or sex-based harassment” can also be found to have engaged in unlawful conduct
- The SD Act applies to members of parliament, their staff, and judges
- Exemptions which applied to state public servants have been removed to ensure the protections contained in the SD Act are also available to these workers
Sex-based harassment is now an express form of unlawful conduct – Under the SD Act, it is unlawful to harass a person because of their sex, which is in addition to the existing provisions which make it unlawful to discriminate against a person because of their sex. A definition of ‘harassment on the ground of sex’, has been included which states that a person harasses another on the grounds of sex if:
- An individual engages in unwelcome conduct of a seriously demeaning nature by reason of another person’s sex, or by reason of the characteristics which generally relate to or are imputed to persons of the same sex of the person harassed; and
- A reasonable person would have anticipated the person harassed would be offended, humiliated, or intimidated.
Therefore, the harassment does not need to be sexual in nature to be unlawful, such as lewd comments about someone’s appearance, unwanted sexual advances, etc. Harassment on the other hand on the grounds of sex may include sexist remarks, such as implying that certain tasks are strictly ‘women’s work’ or men’s work’.
Victimisation leading to criminal and civil action – In addition to the current provisions which allow an individual to make a criminal complaint under the SD Act, an individual who is ‘victimised’ because they make a complaint relating to sexual harassment, may make a civil claim.
Australian Human Rights Commission Act 1984 (Cth)
Timeframe for lodging a sexual harassment complaint extended – Previously, claims brought outside of 6 months of the incident would not be considered by the AHRC, unless it exercised its discretion to extend the time-limit. This time-limit has been extended to 24 months. In effect this means that an employee must now bring a claim within 24 months (rather than 6 months) unless there are grounds to persuade the AHRC to consider the claim outside of this timeframe. This recognises the needs of a complainant and provides more time to consider and prepare their claim.
Where to from here?
It is important for employers to have clear policy and compliance training in place to avoid liability for any sexual harassment that occurs in its workplace. Liability for employers includes any conduct by an employee who engages in sexual harassment, unless they can show they took all reasonable steps to prevent this from occurring. The best way to do this is to ensure all individuals in the organisation from Board Directors to all staff are aware of their obligations and that all staff are receiving regular compliance training. It is also recommended that all employers undertake the following steps to update all documentation and policy:
- Ensure that the leave policy provides for the miscarriage leave entitlements; and
- Update all employment contracts to include disciplinary / termination of employment policies and make clear that sexual harassment can be grounds for summary dismissal
Safetrac’s Sexual Harassment Booster Course provides an up-to-date training program in line with these legislative changes to ensure your staff and workplace is fully compliant with the new amendments.
For all Safetrac online courses, visit our Course Library
This Sexual Harrassment Booster course is designed to provide you with a general understanding of what conduct constitutes sexual harassment in the workplace.
It is a short booster module that should take you approximately 10 minutes and should be completed along with your standard Safetrac Anti-Bullying and Anti-Harassment Course.
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