Changes in sexual harassment legislation explained

May 2, 2023

Bianca Seeto & Wes O’Donnell

Sexual harassment legislation within Australia has a deep history dating back to the 1970s. With the introduction of the Sex Discrimination Act (SD Act) in 1984, Australia was one of the first countries to prohibit sexual harassment in the workplace.

Despite this, the SD Act did not deliver the silver bullet which eliminated sexual harassment in the workplace, and in fact many studies, including the recent Respect@Work: Sexual Harassment National Enquiry Report (2020) (Respect@Work Report), have found that sexual harassment in the workplace has persisted and, in many respects, become an entrenched workplace experience for many.

The Respect@Work Report is the result of a detailed inquiry undertaken by the Australian Human Rights Commission (AHRC) which commenced in 2018 with a view to identifying and reporting upon the prevalence, nature and reporting of sexual harassment in the workplace together with the suitability of current laws in addressing the conduct identified.

The resulting Respect@Work Report holds a mirror up to our modern workplaces and identifies several stark realities including:

• 33 per cent of people have experienced sexual harassment in the workplace in the last five years;
• The prevalence of sexual harassment has increased significantly in the last eight years;
• 39 per cent of women were more likely to be sexually harassed in the workplace compared with 26 per cent of men; and
• Our young and vulnerable workers¹ were more likely to experience sexual harassment in the workplace.

The Respect@Work Report also identified that the interaction between employment law, discrimination legislation and work health and safety (WHS) regulations often created a confusing legislative framework while, significantly, the absence of a positive duty within the discrimination legislation to prevent workplace sexual harassment actually resulted in many employers prioritising compliance with WHS obligations over discrimination legislation.

Why there is a need to change 

We can see from the statistics that unfortunately sexual harassment and sex discrimination are still very much live issues in our workplaces. This is despite the conduct being unlawful for decades. So, what wasn’t working and what had to give?

What wasn’t working was the reactive approach to dealing with unlawful sex discrimination and harassment and what is required was a shift in focus away from this being an issue for women to tackle and instead an issue for society to address in a more holistic way.

Prior to these recent changes, while our laws made sexual harassment and sex discrimination unlawful, the burden ultimately fell to the victim to do something about it. In our many years of practice, we are yet to advise on a sexual harassment or sex discrimination case that was identified as an issue to address without there being a victim involved. This is no criticism of the employers in these cases but rather a by-product of our discrimination legislation often with the matter being dealt with only after the victim was prepared to speak up. In other words, the damage had to occur before there was change.

Movements like #Metoo have empowered victims to speak up, but a much better position for everyone involved would be to see the number of incidents heavily reduced altogether.

The aim of many of the changes to our discrimination and workplace laws that are the topic of this article attempt to achieve this shift in focus that will hopefully get those statistical results down for a safer workplace environment for all workers.

Changes to the Sex Discrimination Act and Australian Human Rights Commission Act

On 28 November 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 passed both houses of Parliament and became law on 6 December 2022. The Act resulted in some significant changes to the Sex Discrimination Act and the Australian Human Rights Commission Act.

Positive duty 

The biggest change is that employers and persons conducting a business or undertaking (PCBUs) now have a positive duty to be proactive in addressing sex discrimination and sexual harassment in the workplace. The changes require employers and PCBUs to take reasonable and proportionate measures to eliminate, as far as possible, unlawful sex discrimination, sexual harassment (including harassment on the ground of sex), hostile working environments and acts of victimisation. The positive duty requires 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.

Prohibition – hostile work environments

The concept of a hostile work environment on the grounds of sex is also a newly introduced concept. Essentially, the new laws now prohibit conduct that subjects another person to a workplace environment that is hostile on the grounds of sex. The Respect@Work Report found that sexual harassment may occur where a workplace environment is sexually-charged or hostile, even if the specific conduct is not directed at a particular person. It was found that the existence of these environments has the potential to increase the risk of people experiencing other forms of unlawful discrimination, such as sexual harassment. The conduct could be as overt as displaying pornographic materials to general banter in the office. For example, if there is a practice of sexual banter or inappropriate jokes that could result in people of one sex feeling unwelcome or excluded.

For the environment to be considered hostile, a reasonable person must have anticipated the possibility of the conduct being offensive, intimidating or humiliating to someone by reason of their sex or characteristics of that sex. It will now be up to an organisation to review its workplace with a critical lens to determine if there is risk of the workplace being considered hostile, and take reasonable and proportionate steps to prevent this.

New enforcement regime

To complement the new positive duty to prevent unlawful sex discrimination and harassment, the AHRC will have new powers to monitor and assess an organisation’s compliance with the positive duty. In effect, there will be a new enforcement regime with the AHRC able to conduct inquiries, issue compliance notices, apply to Federal courts for orders to direct compliance with the compliance notices, and enter into enforceable undertakings with non-complaint organisations.

This enforcement mechanism was another recommendation by the Respect@Work Report as an appropriate tool to help ensure organisations not only engage with their legal obligations, but it also removes some of the burden for individual victims as the AHRC would have the power to initiate complaints rather than relying on an individual to make a complaint.

These new compliance powers will come into effect on 12 December 2023. This means there is time for organisations to prepare to ensure they are compliant before the enforcement provisions take effect.

Changes to the Fair Work Act 

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 received Royal Assent on 6 December 2022. It amended the Fair Work Act 2009 (FW Act) from 7 December 2022 to introduce three new protected attributes at work whereby an employer is prohibited from taking adverse action against a current or prospective employee. These are breast feeding, gender identity and intersex status.

From 6 March 2023, the FW Act will be further amended to include a new prohibition on sexual harassment in connection with work. An organisation will be vicariously liable for the actions of their employees or agents who engage in sexual harassment in connection with work unless they can demonstrate that they took all reasonable steps to prevent sexual harassment.

In addition to workers continuing to have the ability to apply to the Fair Work Commission (FWC) for a stop sexual harassment order, the changes introduce a new dispute resolution process through the FWC if a worker considers they have been sexually harassed in connection with work. These changes to the FW Act provide the FWC with the power to deal with disputes in a similar fashion to the FWC’s powers under the General Protections regime under the FW Act. This means the FWC will have the power to deal with a dispute through a conciliation process or if both parties agree via arbitration whereby the FWC would be able to make orders including for compensation.

If the matter cannot be resolved by the FWC, then a complainant will have the ability to make a claim in the Federal Circuit Court or Federal Court. Similar to a contravention of the general protections laws, a contravention of the prohibition on sexual harassment is subject to a penalty regime with both corporations and individuals who are found by a Court to have contravened the FW Act being subject to significant fines. The Department of Employment and Workplace Relations has announced that $15.1 million in funding has been provided to support the FWC and the Fair Work Ombudsman in their new roles implementing the prohibition and resolving disputes. It is likely that complainants will see this new regime as an attractive option to have their complaints conciliated in a speedy fashion when compared to other jurisdictions where complainants often experience extensive delays in the conciliation process.

Follow these steps to deliver lasting change against sexual harassment

The imposition of a positive duty to take all steps to avoid sexual harassment in the workplace, while preventing victimisation and a hostile work environment should not be viewed with a sense of fatigue or fear of being overwhelmed. Rather, the legislative changes provide workplaces with the opportunity to further establish an organisation’s values, safety culture and positively engage with team members in the process.

The diagram below outlines our suggested approach to considering and implementing actions to deliver lasting change:

Doing nothing is not an option. In fact, doing nothing exposes organisations and workers to significant risk. When considering what actions are necessary and appropriate we would recommend the following considerations:

Understand the nature and effect of the recent changes to the laws and ensure that all relevant stakeholders are equally aware of the nature and importance of those obligations. It may seem obvious, but it is impossible to comply with your positive duty if you’re not aware of the duty;

Critically assess your compliance with the positive duty obligation. It is important that businesses do not see any areas identified as a failing, but rather an opportunity to close a compliance gap and achieve a significant improvement in the organisation’s culture as a result. It is also strongly encouraged that organisations engage widely on this topic as a manager’s understanding of workplace behaviour may be different to the reality.

While the range, depth and sophistication of actions may vary, as a minimum we suggest that organisations:

• Develop an action plan with a view to eliminate or reduce sexual harassment in the workplace;
• Consider implementing or updating contracts of employment and policies which establish the organisations zero-tolerance approach to sexual harassment;
• Implement systems and processes for the notification and management of sexual harassment in the workplace;
• Develop a notification culture to ensure that all incidents of inappropriate conduct in the workplace are raised;
• Refresh your recruitment, induction and onboarding processes to ensure a deep understanding of expectations and processes;
• Undertake regular refresher training to reinforce standards and share knowledge;
• Deliver training on how staff can be confident and more effective in addressing inappropriate conduct in the workplace themselves; and
• Depending on the size of the organisation, consider a whistle-blower service so that employees can raise issues anonymously if needed.

Given the obligation to demonstrate an organisations compliance with the positive duty requirement, the content of the organisation’s sexual harassment plan, and actions undertaken against that plan, should be recorded in a system to manage actions and enable an organisation to demonstrate all of the positive steps taken over time.

If in doubt, seek advice. With all new laws there is a period of transition and learning. FCB Workplace Law and HR Assured are happy to support you on that journey and share with you the many initiatives where we have been involved.

 

Our steady heads are here to guide you through compliance

The new sex discrimination legislation is a great example of how FCB Workplace Law continues to deliver smarter workplace solutions for businesses with a view to avoiding the admin and building the culture.

While significant steps have been taken, we have much to do to evolve into modern, respectful workplaces which are consistently reflecting modern standards of acceptable behaviours. We all have a shared responsibility to do all that we can to creating safe and respectful workplaces.

If this information has raised any further questions, or you have another matter you need advice on, please reach out to the team at FCB for a confidential discussion. You can call us on 02 9922 5188 or email us at info@fcbgroup.com.au .

Bianca Seeto is a partner and solicitor with FCB Workplace Law and was in charge of setting up FCB Group’s Brisbane office, which opened in September 2015. She is an accredited specialist in workplace relations law. She has been providing clients with industrial relations and employment law advice for over a decade, and has special expertise in advising clients operating in the retail sector.

Wes O’Donnell is an experienced Workplace Relations Consultant, combining a strong legal background with extensive consultancy experience in the field of workplace relations and employment law. Wes has over 20 years’ experience assuming senior workplace relations roles in both Australia and London.