Published June 2022
In September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 took effect with the aim to ensuring that more workers are protected and empowered to address unlawful sexual harassment in the workplace. Employers have many obligations with relation to sexual harassment and its prevention, and this employer update provides a summary for all business owners and leaders.
WHAT IS SEXUAL HARASSMENT?
The Respect at Work Amendment Act 2021 has defined sexual harassment under the Fair Work Act 2009 as:
- an unwelcome sexual advance;
- an unwelcome request for sexual favours;
- other unwelcome conduct of a sexual nature in relation to another person;
In circumstances in which a reasonable person expects that there is a possibility that the person being harassed would be offended, humiliated or intimidated by the behaviour.
Under the Fair Work Regulations 2009, sexual harassment is also considered serious misconduct which may be grounds for instant dismissal.
ORDERS TO STOP SEXUAL HARASSMENT
The Fair Work Commission has the jurisdiction to allow an eligible worker, part of a constitutionally covered business, who believes that they’ve been sexually harassed at work by one or more individuals to apply for an order to stop the sexual harassment.
The new provisions apply to:
- an employee
- a contractor or subcontractor
- an employee of a contractor or subcontractor
- an employee of a labour hire company who has been assigned to work in a business or undertaking
- an outworker
- an apprentice or trainee
- an intern
- a student gaining work experience
Where a worker is sexually harassed in the workplace but does not meet the criteria to apply for an order to stop the sexual harassment through the Fair Work Commission, they may still be able to make an application to the Human Rights Commission.
SEXUAL HARASSMENT IN THE WORKPLACE
For the purposes of the Fair Work Act 2009, a worker is sexually harassed at work if, while the worker is at work in a constitutionally-covered business, one or more individuals sexually harasses the worker.
A constitutionally-covered business includes:
- proprietary limited (Pty Ltd) companies;
- foreign corporations;
- trading or financial corporations formed within the Commonwealth of Australia;
- the Australian Government;
- a body corporate established for a public purpose by or under a Commonwealth law or;
- a body corporate incorporated under a Commonwealth, state or territory law where the Commonwealth has a controlling interest in that body.
A constitutionally-covered business does not include:
- a sole trader or partnership;
- a state government department;
- a non-corporate state public sector agency and;
- a local government not engaged in trade or financial activity.
You may need legal advice to decide whether your workplace is covered by the laws to stop sexual harassment at work and where to lodge a claim. Find out more here.
WHAT SHOULD BUSINESSES DO NOW?
To ensure both businesses and employees are protected, we encourage all businesses to:
- Review and update their existing employment contracts, bullying & harassment policies, and other related procedures to ensure they are in line with these new changes.
- Take positive steps to eliminate sexual harassment in the workplace. For example, regularly training your employees about acceptable workplace conduct, ensuring employees are aware of the procedure for reporting and investigating complaints, regularly completing refreshers with your team on your bullying and harassment policies, and informing team members about how to report concerns.
- Ensure your company culture reflects modern societal expectations.
- Talk to the team at Edwards HR about tailoring a company policy and training session for your team.
- Take appropriate steps to ensure that your employees are protected, such as promptly addressing and/or investigating issues and taking appropriate action where necessary.
- Consider appointing contact officers for employees to discuss any concerns or complaints confidentially.
- Review the free resources available for employers through the Human Rights Commission.
As always, the team at Edwards HR are here to answer your questions and provide support across all areas of HR. You can reach us on the details below:
Emma Edwards – 0459 818 011 or firstname.lastname@example.org
Jill Kirkpatrick – 07 3568 0866 or email@example.com
Lois Alford – 0497 497 342 or firstname.lastname@example.org
Feel free to share this update with your network.