Updated anti-sexual harassment laws

In recent years workplace anti-sexual harassment laws have reformed significantly. One important legislative reform was the introduction of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (the Act) which came into effect on 12 December 2022.

The Act, originating from recommendations of the Respect@ Work Report published by the Australian Human Rights Commission (the AHRC), inserted new anti-sexual harassment provisions into the Sex Discrimination Act 1984 (Cth) (SDA) and the Australian Human Rights Commission Act 1986 (Cth).

Key reforms to anti-sexual harassment laws included:

1. Imposing a positive duty on employers to take ‘reasonable and proportionate measures’ to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.

2. Making it unlawful for a person to engage in conduct that subjects another person to a workplace environment which is hostile on the basis of sex.

3. Provide the AHRC with powers and function to monitor and assess compliance with the positive duty in the SDA and inquire and report on systematic unlawful discrimination, including sexual harassment.

4. Clarifying that victimising conduct can form the basis of a civil action for unlawful discrimination.

5. Allowing representative bodies (such as a trade unions or advocacy groups) to bring claims to the federal courts.

6. Lowering the test for a finding of sexbased harassment under the SDA.

The new positive duty on employers to eliminate sexual harassment and the prohibition of conduct that creates a hostile workplace environment, is discussed below.

Positive duty to eliminate sexual harassment

Employers have an existing duty under the Work Health and Safety Act 2011 (Cth) and their relevant state’s work health and safety laws, to, so far as reasonably practicable, provide and maintain a working environment that is reasonably safe and free of risks to health.

In addition to this existing duty, the Act imposes a new positive duty on employers to take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct that is already made unlawful under the SDA, including:

• sex discrimination;

• sexual harassment;

• sex-based harassment;

• conduct that amounts to subjecting a person to a hostile work environment on the ground of sex; and

• certain acts of victimisation. Examples of such conduct includes the following:

• unwelcome touching, kissing, cornering or hugging;

• suggestive comments or jokes;

• inappropriate staring or leering;

• sexually explicit pictures, gifts or posters;

• using suggestive or sexualised nicknames for co-workers;

• pressure or requests for sex;

• intrusive questions about a person’s private life or body; and

• sexually explicit or indecent physical contact or indecent emails, phone calls, text messages or online interactions.

In determining whether an employer has taken “reasonable and proportionate measures” to eliminate sexual harassment, factors such as the size, nature and circumstances of the employer, its resources, the practicability and the cost of measures to eliminate such conduct can be taken into account.

The positive duty also extends to employers taking reasonable and proportionate measures to eliminate, as far as possible, unlawful discriminatory conduct by other third parties, including customers, contractors and suppliers towards employees and workers.

Hostile workplace environment

The Act makes it expressly unlawful for a person to subject another person to a workplace environment that is hostile on the ground of sex. As such, employers now have a duty to eliminate, so far as is possible, circumstances subjecting individuals to workplace environments that are hostile on the ground of sex.

Under the Act, a person (Person 1) subjects another person (Person 2) to a workplace environment that is hostile on the ground of sex if Person 1 engages in conduct (which includes making a statement orally or in writing) in a workplace where Person 1 or Person 2, or both, work and:

• Person 2 is in the workplace at the same time as or after the conduct occurs; and

• a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the sex of the Person 2 by reason of their sex or characteristics that generally appertain or are imputed to persons of their sex.

In determining whether a person has subjected another person to a hostile workplace environment on the ground of sex, the circumstances to be taken into account include, among other factors, the seriousness of the conduct, whether the conduct was continuous or repetitive, and the role, influence or authority of the person engaging in the conduct.

It is important to note that such prohibited conduct does not necessarily need to be directed at a specific person in the workplace. For example, a joke of a sexual nature told by one person to another is prohibited if, a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the joke resulting in the workplace environment being offensive, intimidating or humiliating.

Members should take steps to ensure they comply with these new obligations, such as undertaking a risk assessment to understand risk exposures to sexual harassment and identifying any gaps, reviewing, and updating policies and procedures and considering further staff training.

The above article is provided for general information purposes only. Nothing in this article should be construed as legal advice. Members requiring assistance or advice should contact our Employment Law team on 1800 888 479.