The sexual harassment framework: Your guide to recent reforms

Australia’s sexual harassment framework has been subject to significant law reform over the last two years.

Between September 2021 and December 2022, three key pieces of federal legislation were enacted:

• Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, receiving royal assent on 10 September 2021 (Respect@Work Act 2021)
• Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, receiving royal assent on 6 December 2022
• Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, receiving royal assent on 12 December 2022 (Respect@Work Act 2022), (together, Amending Acts).

This guide outlines the major changes from the Amending Acts, the avenues for dispute resolution and six steps to assist employers meeting their obligations.

Major changes

The Amending Acts have made changes to the Fair Work Act 2009 (Cth) (FW Act), Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and Sex Discrimination Act 1984 (Cth) (SD Act).  

New obligations for employers

• Positive duty: Employers and “persons conducting a business or undertaking” (PCBUs) have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment, sex-based harassment, hostile work environments and certain acts of victimisation (see section 47C of the SD Act). Reasonable and proportionate measures required to discharge an employer’s duty will vary and depend on:
  • the size, nature and circumstances of the company
  • the company’s resources, whether financial or otherwise
  • the practicability and costs associated with the steps.

To clarify, an express clause was included to explicitly state that the positive duty does not limit or effect any duty under WHS legislation.

• Extended coverage: The SD Act covers PCBUs and “workers”. This means an employer’s obligations under the SD Act extend to people such as volunteers and contractors.
• Extended liability for employers: Section 105 of the SD Act prohibits a person (including employers) from instructing, aiding or permitting someone else to engage in victimisation or harassment under Part 2 Division 3 of the SD Act (which includes sexual harassment, sex-based harassment and hostile work environments).

New protections for workers

• Two new types of harassment have been included in Part 2 Division 3 of the SD Act:
  • harassment on the grounds of sex (or sex-based harassment): Section 28AA of the SD Act prohibits someone engaging in unwelcome conduct which is demeaning in nature and on the basis of someone’s sex or a characteristic of that sex
  • hostile work environments: Section 28M of the SD Act prohibits subjecting another person to a workplace environment that is hostile on the ground of sex. The seriousness of the conduct, frequency of the conduct and the role, influence or authority of the person engaging in the conduct will be taken into account when determining whether a person has been subject to a hostile workplace environment on the ground of sex.
• Extended discrimination protections: The FW Act now includes specific protections for employees, prospective employees and contractors against adverse action being taken against them because of their gender identity, intersex status, or because they are breastfeeding.
• Compassionate leave includes miscarriages: Compassionate leave entitlements under section 104 of the FW Act have been extended to include miscarriages. Full-time and part-time employees can take up to two days of paid leave (unpaid for casuals) if the employee, their spouse or de facto partner has had a miscarriage. This does not extend to contractors.

Other changes

• Sexual harassment  a valid reason for dismissal: Sexual harassment is expressly called out as a valid reason for dismissal under section 387 of the FW Act. If an employer makes a finding that sexual harassment has occurred – it is a valid reason for dismissal.
• Victimisation a civil action: Under the SD Act, victimisation is a civil action.

Changes still to come

The Respect@Work Act 2021 introduced some of the 55 recommendations from the Australian Human Right Commission’s (AHRC) ‘Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces’ (Report). The Respect@Work Act 2022 aimed to introduce the remaining recommendations from the Report – however, the final version of the act did not include recommendation 25, being “amend the Australian Human Rights Commission Act to insert a cost protection provision consistent with section 570 of the Fair Work Act 2009 (Cth)”.

The Federal Government is still committed to implementing all the recommendations from the Report and has recently sought consultation from interested parties on the costs protection model for Commonwealth anti-discrimination matters.

Avenues for complaints

Workers can bring complaints through a number of avenues. These are set out below.

AHRC

Individuals have always been able to make a complaint concerning harassment and/or discrimination in the AHRC.

The time limit for lodging a complaint in the AHRC for conduct in contravention of the SD Act, Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth) or Racial Discrimination 1975 (Cth) has been increased to 24 months from when the conduct occurred. This time limit is a discretionary time limit, meaning the AHRC can investigate and attempt to conciliate claims which have been lodged outside the 24-month time limit.  

The AHRC also has extended powers to conduct inquiries into a company’s compliance with the positive duty and into unlawful and systemic discrimination.

Fair Work Commission (FWC)

Sexual harassment in connection to work is now expressly prohibited under section 527D of the FW Act and employers can be held vicariously liable for sexual harassment under section 527E of the FW Act.

The FWC has the ability to deal with allegations of sexual harassment. The time limit for a worker to bring a claim in the FWC is 24 months.

Under section 527F, a worker can ask the FWC to deal with the dispute by:

• making a “stop sexual harassment” order; or
• dealing with the dispute; or
• making a “stop sexual harassment” order and otherwise dealing with the dispute.

An application for a stop sexual harassment order is directed towards preventing future harassment. The FWC will make an order where it is satisfied that the unlawful sexual harassment has occurred and that the person will continue to be harassed. The FWC can make any preventative order considered appropriate (other than the payment of money).

An application for the FWC to deal with the dispute is directed to both past and future harm caused by sexual harassment. The FWC can deal with the dispute including by conciliation, mediation, making a recommendation or expressing an opinion. If unresolved, the dispute may proceed to a determinative conference, court hearing or to arbitration by consent.

While we have little guidance on how the FWC will deal with these disputes, the first case is currently listed before the FWC.

State and territory regulatory bodies

We note that the states and territories have their own regulatory bodies where individuals can bring harassment and discriminations claims under the relevant state or territory anti-discrimination legislation.

Key steps for employers

Employers should approach the amended framework with the mindset of preventative action. While it is incredibly important to deal with any complaint of harassment or discrimination seriously and appropriately, the changes have reinforced the importance of employers fostering a workplace built on respect and taking action to prevent against harassment and discrimination.

To assist employers in discharging their positive duty and meeting their obligations under the sexual harassment framework, we propose the following steps.

Step 1: Review company culture

Employers should reflect on their workplace culture and the behaviour of workers, senior leaders and management.

Overt forms of sexual harassment are often easily identifiable, but more subtle sexual harassment, such as crude language or sexist remarks, often go unnoticed. Employers should assess whether there is any aspect of their current culture that could be subject to the requirements of the sexual harassment framework.

One way that can assist in assessing workplace culture is asking workers to participate in an anonymous survey.

Step 2: Review policies annually

Best practice is for employers to review policies annually. Policies should be reviewed for compliance with the law and with the following questions in mind:

• are senior leaders, managers and workers implementing and/or following the policies?
• are policies effective in preventing harassment and discrimination?
• is there anything that needs to change?

Step 3: Regular targeted training

Employers should run regular training sessions that are tailored to the workplace and the level of the worker receiving the training. Training should be provided to workers at all levels and in a form that all workers can understand. For example, the training that is suitable for senior leaders and managers will be different from the training suitable for employees.

Employers should also consider the mode of training – often face-to-face training is the most effective as employers can ensure that the audience is engaged and understands the content.

Step 4: Assess risks of harassment and discrimination

Employers and managers should also conduct contemporaneous risk assessments for the risk of harassment and discrimination occurring in the workplace. Employers should consider, among other things, the following when assessing the risk:

• how your workers interact with each other
• how your managers and workers interact with each other
• whether your workers interact with people outside the company’s control – such as customers and clients
• whether workers are comfortable raising issues and concerns with management.

Step 5: Implement control measures to address risks of harassment and discrimination

Employers should implement control measures to address any risks of harassment and discrimination identified in step 4. There is no ‘one size fits all’ approach to implementing control measures. Employers should consider the control measures that are right for their company, the circumstances and the workers involved.

Step 6: Review the effectiveness of control measures implemented

Finally, employers should review and assess the effectiveness of any control measure implemented in step 5.

The AHRC and Respect@Work Council have created the Respect@Work website – to provide resources for employers and employees.

If you have any questions regarding these reforms or on sexual harassment in the workplace, please get in touch with a member of the Workplace Relations and 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.

Published by:

Michael Selinger

Olivia Lawrence

Share this