07 March 2023
7 min read
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The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) has made substantial amendments to the Fair Work Act 2009 (Cth) (FW Act).
In the fourth part of this series, we look at the provisions regarding sexual harassment and anti-discrimination, and what the changes mean for employers.
You can revisit our other articles in this series:
Policy rationale: The Amending Act implements recommendation 28 of the ‘Respect@Work: Sexual Harassment National Inquiry Report (2020)’ and complements the recent amendments made by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect at Work Act) which introduced a positive duty for employers to prevent sexual harassment in the workplace under the Sex Discrimination Act 1984 (Cth) (SD Act) and expanded the Australian Human Rights Commission (AHRC)’s powers after receiving royal assent on 12 December 2022.
Before the Amending Act, the FW Act did not expressly prohibit sexual harassment, with the only practical option for a worker who has been sexually harassed at work being an application to the Fair Work Commission (FWC) for an order to stop sexual harassment. The changes to the FW Act aim to strengthen the legal framework dealing with sexual harassment in the workplace.
Operative provisions: The Amending Act seeks to address sexual harassment in the workplace through the following key provisions:
These changes came into effect on 6 March 2023.
Express prohibition of sexual harassment in connection with work
The Amending Act has introduced an express prohibition of sexual harassment into the FW Act. The protections extend to prospective workers and persons conducting a business or undertaking (PCBU).
While the provisions prohibit sexual harassment committed by third parties, for example, by a client against a worker, they do not cover the reverse, for example, by a worker against a client. Such a situation will remain exclusively regulated by anti-discrimination laws.
Contravention of this prohibition will attract civil liability and a penalty. The maximum penalty for a breach of this provision is currently $82,500 for a body corporate and $16,500 for an individual.
Vicarious liability
Employers can be held vicariously liable for sexual harassment committed by their employee or agent in connection with the employment. Consistent with the SD Act, an employer will not be vicariously liable if it can show that it had taken all reasonable steps to prevent the sexual harassment.
Expanded powers of the FWC
Prior to the amendments, the main practical option under the FW Act for an employee to deal with sexual harassment was to apply to the FWC to make a “stop sexual harassment order”.
The amendments mean that a complainant may now apply for the FWC to otherwise deal with the dispute (within 24 months of the contravention), in addition to, or as an alternative to, making a “stop sexual harassment order”. The FWC may deal with a sexual harassment dispute by mediation or conciliation and/or by making a recommendation or expressing an opinion.
The Amending Act has also introduced a new dispute resolution framework (modelled on the framework that applies to general protections dismissal disputes) to deal with sexual harassment disputes. Similar to a general protections dispute, if the dispute does not resolve at the mediation or conciliation, the FWC will issue a certificate allowing for an arbitration by consent or the ability for the aggrieved person to initiate court proceedings.
Double dipping is prohibited. This means an aggrieved person cannot make a sexual harassment application under the FW Act if they have made an application or complaint under an anti-discrimination law (whether at the federal, state or territory level), and vice versa.
Implications for your organisation: The Amending Act provides greater protections for workers and more obligations on employers when dealing with sexual harassment at work.
The usual course for a worker experiencing sexual harassment has been to make a complaint to the AHRC. Now, workers have the additional avenue to bring a claim to the FWC.
The FWC will be publishing a new Sexual Harassment Disputes Benchbook setting out the FWC’s jurisdiction and processes for dealing with sexual harassment disputes in more detail.
Employers, directors and human resources managers should consider the following:
Effective training is a good way to prevent sexual harassment. Employers should provide yearly compulsory training to all workers (including senior management) on sexual harassment.
People who will likely receive sexual harassment complaints (e.g., human resources, managers) should also receive additional training on how to manage such complaints and provide support to the person making the complaint.
Policy rationale: The federal government considered that the protected attributes from discrimination under the FW Act were outdated when compared with Commonwealth anti-discrimination laws. The new amendments were introduced to strengthen the FW Act’s anti-discrimination protections and improve job security and gender equality.
Operative provisions: The Amending Act made a number of changes to the FW Act to promote gender equality and anti-discrimination. The key changes include:
With the exception of the expert panels, which came into effect on 6 March 2023, these changes took effect on 7 December 2022.
Potential implications for your organisation: The further protected attributes mean that workers subject to discrimination in the workplace because of gender identity, intersex status or breastfeeding will now be able to make a claim through the FWC. Employers should also ensure their equal employment opportunity policies are updated to reflect the new protected attributes.
When reviewing their enterprise agreement framework, employers considering to include a “special measure to achieve equality” term in their enterprise agreement must ensure that term fits into the definition under the FW Act and that it is not unlawful under any anti-discrimination laws.
While the new amendments for equality will not generally have a direct impact on employers in their daily operations, the expansion of the existing framework for equal remuneration for work and promotion of gender equality is likely to increase awareness of gender equality in workplaces. Employers can benefit from reflecting on their workplace culture and procedures and assessing the risk of discrimination based on gender is eliminated.
If you have any questions about the changes, please get in touch with our national workplace relations & safety team below.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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