Sexual Harassment in the Workplace

Information on Your Business’ Liability for Sexual Harassment

Background

On 5 March 2020 the Sex Discrimination Commissioner, Kate Jenkins, released a report called ‘Respect@Work: Sexual Harassment National Inquiry Report’, in which the Commissioner made 55 Recommendations for the elimination of workplace sexual harassment.

The Anti-Discrimination and Human Rights Legislation (Respect@Work) Bill passed Parliament and received Royal Assent on 12 December 2022. It implemented the remaining Recommendations of the Respect@Work report.

Effective from 13th December 2022, employers have a legislated positive obligation to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.

The significance of this amendment in terms of liability, is that an employer is now not only vicariously liable under the Sex Discrimination Act 1984 for Sexual Harassment in the workplace, but they now also have a positive obligation to be proactive and take preventative action to stop sexual harassment from occurring in the workplace.

How to Comply with Your Positive Obligation

Your obligation as an employer is to ensure the health and safety of your workers. A workplace is a dynamic place where people with different life experiences, different levels of power and responsibilities interact to create what is acceptable and unacceptable behaviour in that space. Because of this, all workplaces need to be continually and actively reviewing and ensuring that the space they are creating is safe and inclusive.

Image courtesy of AHRC.

There are various actions an employer can take to ensure they are meeting their positive duty.

• Develop a Sexual Harassment Policy that clearly outlines the definition of sexual harassment and explains that it is unlawful. The policy should indicate that the organisation has a zero tolerance for sexual harassment and clearly sets out a complaints procedure and process that includes the organisation promptly investigating any allegations of sexual harassment. The policy should include a statement that sexual harassment at work is a form of serious misconduct and can be a valid reason for dismissal under the Fair Work Act 2009. 
• Provide ongoing training to all staff members about their rights and responsibilities as set out in the policy.
• Display this policy in a common area and ensure it is easily accessible for all employees and/or management.
• Conduct workplace training on the causes of sexual harassment and how to prevent it. This training should only be conducted by experts in the field (like the Working Women’s Centre SA Inc). Repeat the training as new employees join the organisation and encourage long-term employees to refresh their knowledge every few years or as the organisation’s policies and practices evolve.
• Assess any risk factors specific to each industry and/or business (for example: live-in arrangements, male-dominated industries, geographic isolation of work, and work performed in close physical proximity to people etc.).
• Medium and large employers should undertake regular audits to monitor prevalence and/or occurrences of sexual harassment in their workplaces.
• Develop and adopt a Gender Equity Policy to promote and improve gender equality. The policy should outline your organisation’s commitment to promoting a culture that embraces gender equality and should include commitments to promote more women to leadership roles.

Risk to Your Business

The government has made it clear with these legislative amendments that Australia has a no tolerance policy to sexual harassment in the workplace. This attitude is reflected in the cultural change we have seen in the media and wider communities.

As of 13^th December 2022, a person conducting a business or undertaking (PCBU) is exposing themselves to risk of legal action by failing to take preventative measures to prevent sexual harassment. If sexual harassment happens in connection with one of your employees, then you could be faced with one or more of the following outcomes:

1. Loss of talented employees.
2. Responding to a Sex Discrimination Claim.
3. Responding to a sexual harassment dispute in the Fair Work Commission.
4. Responding with a worker’s compensation claim.
5. Respond to an enquiry initiated by the Australian Human Right’s Commission.

As a part of an employer’s positive obligation to prevent sexual harassment, the organisation or business should proactively educate leaders, and other staff members in management, on the recent law reform and new obligations.

Powers of Australian Human Rights Commission
From 13 December 2023, the Australian Human Rights Commission will have regulatory powers to monitor and enforce compliance of this positive duty. These powers include conducting inquiries and applying to the federal courts for orders to be made against businesses.

To protect your workers, lower your liability of legal risk, and protect the reputation of your business, it is essential that you inform yourself of this positive obligation and what is required of you to satisfy this obligation.

Workplace Training on Sexual Harassment

The Working Womens Centre SA offers free and fee for service training for workplaces to educate them on their legal obligations under workplace and discrimination legislation. Our goal is to provide workplaces with the practical tools to support their staff through training, policy development and ongoing consultation.

Training Package – Preventing and Addressing Sexual Harassment

This training is for organisations and businesses to increase knowledge of what sexual harassment in the workplace is according to current legislation, including recent amendments that put a positive obligation on employers to prevent sexual harassment.

Employers will learn practical strategies to prevent sexual harassment at work, dealing with sexual harassment and discrimination complaints, and learn how to create a positive workplace culture free from inappropriate behaviours.

We work with you to tailor our packages to suit your specific context/industry and can tailor training for different people with varying responsibilities within your organisation.

This training package covers the following:

• Defining and identifying types of harassment and discrimination that may be encountered at work.
• Handling disclosures and managing complaints. Learn how to identify and manage bullying, discrimination, and harassment issues.
• Workplace laws relating to sexual harassment and discrimination and understanding employer obligations.
• Understanding of the impact of sexual harassment on the workplace.
• A summary of sexual harassment cases.
• Bystander awareness.
• Cultural context and community opinion.
• Understand the difference between direct and indirect discrimination.
• Understand and implement risk mitigation and grievance procedures.
• Understand the cost of harassment and the employer’s responsibilities.
• Learn how to manage risks associated with bullying, discrimination, and sexual harassment.

For any enquiries or to book a training session today, contact our office of 8410 6499, make an online enquiry, or email us at training@wwc.org.au.