Legal update: what the new changes to Australia’s sexual harassment laws mean for your workplace

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Last week, the Federal Government’s ‘Respect at Work’ Bill passed into law, making changes to the existing laws surrounding sexual harassment in the workplace as governed by the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth). These changes were introduced in response to Kate Jenkins’s 2020 Respect@Work report (you know the one that was sitting on a dusty shelf in the basement corridors of Parliament for a year?).

These changes are important and all Australian workplaces will need to get across them. There’s no question in our minds that sexual harassment remains a massive problem in Australian workplaces and that the onus and fall out still falls far more on the shoulders of the victims rather than at the feet of the perpatrators, so we see this as a small step in the right direction.  

Here, we’ve summarised the changes which your organisation will most immediately need to get across:

  1. Sexual harassment as a valid reason for dismissal

It is now explicitly the law that sexual harassment forms a valid reason for dismissal. This means that if you dismiss an employee for sexual harassment and they then claim that they have been unfairly dismissed, sexual harassment is a relevant factor in determining whether the dismissal was harsh, unjust, or unreasonable. You still need to follow proper process so please do contact us so we can support you to take defensible action. And we’re calling these small steps because sexual harassment has been considered a valid basis for termination for some time. What’s new is that explicitly referencing it in this way means that when the office creep gets the sack, their capacity for legal repercussions is reduced.

2. Sexual harassment is now defined as serious misconduct

In a similar vein to it constituting a valid reason for dismissal, sexual harassment can now be considered serious misconduct and (again when the right steps are followed) this now justifies dismissing an employee without notice for sexual harassment. This helps to empower employers to take a zero tolerance position on sexual harassment at work and it means that – as is long overdue – you’re no longer obliged to pay someone notice where they have been found to have engaged in sexual harassment and their employment has been terminated. 

3. Prohibition of sex-based harassment

Ok, sorry to get into semantics, but here we go. As we all know, sexual harassment is and was unlawful. Now, sex-based harassment will be, too. 

What’s the difference? 

A person will be considered to have sexually harassed another person if they either:

  1. Make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person; or
  2. Engage in any other unwelcome conduct of a sexual nature where a reasonable person would have anticipated that the other person would be offended, humiliated or intimidated.

Sex-based harassment, on the other hand, means harassing another person on the basis of their sex in circumstances where it is anticipated that the person harassed would be offended, humiliated, or intimidated. So no Marcus, you can’t shout about it being Sharon’s time of the month when she says she doesn’t like your business idea. 

For someone to be found to have engaged in sex-based harassment, their behaviour must be ‘seriously demeaning’ and not just a mild form of unwelcome conduct. What does ‘seriously demeaning’ mean, you ask? We’ll need to see how this develops but we think it’s likely to be conduct that a reasonable person in the circumstances would consider particularly derogatory or cruel. 

We recommend that you ensure that your employees are very clear on the kind of conduct that’s ok, and what’s not. That way, you can prevent and act decisively where bad apples threaten to poison the workplace well.

4. Expanded coverage of the Sex Discrimination Act 

Previously employers were only liable for their employees. Now, these amendments expand employers’ responsibility to any person conducting a business or undertaking. This means that any sexual harassment or sex based harassment perpetrated by someone who has a workplace relationship with your organisation  – interns, volunteers, contractors, consultants, students, honorary fellows are some examples  – is unlawful. 

This means what we’ve always known: creepy senior staff members should NOT be kissing the 16 or 17 year old intern on the neck (and to be clear, that’s likely assault as well as harassment). If they do engage in such conduct (ask us for advice on what to do when you even get a sniff of that kind of conduct), your organisation should NOT protect the perpetrator of that conduct because now, your liability is extended. 

Employers must take preventative measures. Start with ensuring your policies and procedures are up to scratch, reflect the new laws, and are accessible, as well as circulated to consultants and anyone else who’s working with your organisation. Luckily, we know just the firm to help you ensure your policies and procedures, and learning and development are topmost of any possible preventative notches (that would be us!).

The changes also extend liability to any person who causes, instructs, induces, aids, or permits another person to engage in sexual or sex-based harassment. This raises interesting questions about the role of bystanders, leadership, and culture. These extended obligations are imposed on employers, but also on employees who assist, encourage, or engage in sexual or sex-based harassment and who will be liable under the Sex Discrimination Act. This expansion emphasises the importance of ensuring employers and employees are aware of appropriate workplace practices. In short: roll out refreshed appropriate workplace conduct training, ASAP.

5. ‘Stop orders’ in the context of sexual harassment

In the same way as a worker who alleges that they’re experiencing bullying can seek a stop bullying order, employees who reasonably believe that they have been sexually harassed at work may now apply to the Fair Work Commission for an order to stop the sexual harassment. 

Unlike with bullying where there must be a course of conduct, sexual harassment can be a one off incident. A worker will need to satisfy the Commission that the harassment has occurred and that there is a risk of the harassment recurring. 

Again, the take home is that employers must be on top of policies, procedures and these changes. This will avoid Fair Work taking action where employees feel that you’ve failed to listen to or act on concerns about sexual harassment in your workplace.

Conclusion 

The new laws reflect a small step in the right direction. They clarify that workplaces can take decisive action in response to sexual harassment and the changes apply to all Australian workplaces. If you bear responsibility for safety in your business, please do get in touch with us at info@laceyandco.legal. We’ll help you to navigate an approach to these new laws which will work for your organisation.

Meantime, here’s the update to your to do list arising from these changes:

  • Review your policies and procedures to ensure they reflect the changes to sexual harassment laws.
  • Make sure your policies and procedures are easily accessible (are they on your website and intranet?) and that you have directly provided them to all your stakeholders: consultants, contractors, interns, volunteers and more.
  • Review and update all your employment contracts to expressly include sexual harassment as a form of serious misconduct which warrants dismissal without notice.
  • Roll out appropriate workplace training for all employees and make it open to other workers too, wherever possible, to ensure that they’re educated on the changes, particularly regarding sex-based harassment and new liabilities for bystanders.