Sexual Harassment: The Respect@Work Amendments

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Employers may be liable for sexual harassment committed by employees under new laws.

Under various laws, employers have a responsibility to eliminate or minimise the risk of sexual harassment occurring in the workplace insofar as is reasonably practicable.

In a 2018 National Survey conducted by the Australian Human Rights Commission (AHRC), it was revealed that 33% of Australians have experienced sexual harassment at work in the preceding 5 years. That’s two in five women (39%) and just over one in four men (26%). Only 17% of people who experienced sexual harassment at work during that time made a formal report or complaint about the harassment. Aboriginal and Torres Strait Islander people were more likely than non-Indigenous people to experience sexual harassment.

Due to these damning figures, in 2020, the Respect@Work National Inquiry Report examined the current legal and regulatory system surrounding sexual harassment, antidiscrimination, and employment. It made a number of recommendations for legislative change. Last month, the Federal Government passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021.

What has changed?

The Bill has made amendments to both the Fair Work Act 2009 and the Sex Discrimination Act 1984. Among the amendments are the following:

• Sexual harassment is now expressly included in the definition of ‘serious misconduct’

• Sexual harassment is now a valid reason for dismissal

• Employees can obtain a ‘stop sexual harassment’ order

• Employers may be liable for ‘aiding or permitting’ a person to sexually harass another person

• Employees may take civil action against employers who victimise them for making a sexual harassment complaint

What does this mean for employers?

Most importantly, employers may now be liable for causing or permitting sexual harassment to occur in the workplace. This means that an employer may be found to have committed an unlawful act if they instructed, induced, aided or permitted someone else in the workplace to engage in sexual harassment or sexbased harassment.

Employers may now be served with a ‘stop sexual harassment’ order equivalent to a ‘stop bullying order’. This order will allow the Fair Work Commission to attempt to resolve the issue before more formal proceedings are initiated.

Additionally, employers should note that the offence of ‘victimisation’ – that is, taking adverse action against an employee for making a complaint of sexual harassment – now carries an extra sting. Employees can now take civil action against an employer for unlawful discrimination on the grounds of victimisation.

Finally, prior to this amendment, employers could terminate an employee without notice for misconduct involving sexual harassment in certain circumstances. However, it was not specifically made clear in the legislation. The new amendment gives members more confidence when deciding to terminate an employee upon finding that sexual harassment has occurred in the workplace.

What do Members need to do differently?

Some of the above amendments have sought to clarify what was previously murky water for employers. Some amendments have now prescribed further rights for employees, which may pose a new challenge for small and medium business employers.

Members are advised that in order to best protect themselves, they should continue to implement strategies to

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manage the risk of sexual harassment, with the clear aim of eliminating the risk of sexual harassment in the workplace, or minimising the risk so far as is reasonably practicable. This could include the following:

• Training employees to identify sexual harassment

• Addressing unwanted or offensive behaviour early

• Understanding that certain groups of people are more likely to experience sexual harassment - e.g. young people, women, people who identify as LGBTQI+, people of colour, people living with disabilities, and

Indigenous people

• Implementing sexual harassment policies that promote respectful and inclusive workplace culture, and reviewing these policies regularly

• Having a thorough, transparent, and impartial complaints system that encourages workers to report any incidents of sexual harassment • Handling any complaints in a confidential and sensitive manner, while focusing on supporting the worker involved

• Implementing appropriate consequences for sexual harassment, such as disciplinary action or termination; and, crucially • Consistently enforcing a positive and respectful culture at work.

With the introduction of these new amendments, it is more important than ever to understand your rights and obligations regarding sexual harassment in the workplace.

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We are hosting a Free Webinar on Sexual Harassment in the Workplace on Wednesday, 9 February 2022. To book please log on to www.mga.asn.au/ webinars

Should you require any assistance, please do not hesitate to contact MGA TMA on 1800 888 479.

If this article has raised concerns for you or someone you know, please contact Lifeline on 13 11 14 or Beyond Blue on 1300 224 636.