The Respect@Work Act has introduced a positive duty on employers and persons conducting a business (or undertaking PCBUs) to take reasonable and proportionate measures to eliminate, wherever possible, unlawful sex discrimination, sex-based harassment and sexual harassment in the workplace.
Previously, sexual harassment was typically only dealt with when an employee made a complaint about it in the workplace. Any action that an employer took in relation to that compliant was entirely reactionary – responding only to what had already occurred.
The new positive duty is hoped to be proactive and forward-thinking. Moving forward employers will be required to take positive steps to prevent sexual harassment from occurring in the first place.
Keeping employers accountable to ensure they are complying with their new duty
The Australian Human Rights Commission has been given the power to monitor, assess and enforce compliance with the new positive duty in the Sex Discrimination Act. These powers (which appear in the Anti-discrimination and Human Rights Commission Act) include:
- Conducting inquiries
- Issuing compliance notices
- Applying to Federal Courts for compliance orders; and
- Entering enforceable undertakings.
At this stage, these powers are set to commence on 13 December 2023.
What does reasonable measures mean?
There is no specific legislative definition that proscribes what an employer must do in order to try and prevent sexual harassment. Rather, every employer, regardless of size must take whatever steps are considered reasonable within their specific workplace in order to prevent sexual harassment and avoid liability. This includes implementing appropriate precautionary measures and then responding satisfactorily when harassment occurs.
It pays to take note that what is reasonable in a large business may not necessarily be reasonable in a small business, so each workplace needs to have regard to their unique characteristics.
Some examples of what might be considered reasonable, depending on the size of the organisation include:
- Formal induction and training sessions
- Create a positive work environment
- Encourage appropriate conduct by managers (through accountability mechanisms, selection criteria, performance appraisals)
- Regular sexual harassment training
- Sexual harassment policy and procedure; and
- Taking intentional action to monitor, improve and remedy any identified risk areas in the workplace.
New offence prohibiting hostile work environments
One of the other changes that the Respect@Work Act has introduced is a prohibition against any conduct that subjects another person to a hostile work environment on the basis of sex.
Basically, what this means is that if:
- a person (Person A) engages in conduct in a workplace (which doesn’t have to be their own workplace); and
- another person (Person B) is present at the time or after the conduct occurs; and
- a reasonable person would have thought the behaviour could make the workplace become offensive, humiliating of intimidating due to the sex or characteristic of Person B,
then, the new prohibition introduced by the Respect@Work Act will have been breached.
Other important changes – no costs jurisdiction
In addition to the introduction of a positive duty on employers to take reasonable and proportionate measures to prevent sexual harassment from occurring in the workplace, together with the new prohibition on allowing hostile work environments, the Restpect@Work Act also brings with it a number of other important changes.
Perhaps most relevant to employees is that the Australian Human Rights Commission Act has been amended so that each party generally bears their own costs in court proceedings relating to sex discrimination or sexual harassment. Previously, there was a risk that a party (such as an employee who alleges sex discrimination or sexual harassment) could be exposed to an order requiring them to pay the legal fees of the employer.
By limiting the circumstances in which an employer can seek payment of their legal fees by the employee, employees can have greater confidence in taking a stand and pursuing their discrimination or harassment claim through the court process.
Queensland Specific Changes
If you are in Queensland, it is also important to be aware that on 23 November 2022, the Queensland Government also introduced a number of amendments (through the Industrial Relations and other Legislation Amendment Bill 2022) to the Industrial Relations Act 2016 (Qld) and the Anti-Discrimination Act 1991 (Qld) to provider better protection to employees from sexual harassment.
These amendments provide the Queensland Industrial Relations Commission with the ability to conduct conciliations and arbitrations in relation to complaints of sexual harassment, sex and gender-based harassment.
Where to from here
Obviously, if you are experiencing sexual harassment in the workplace you do not need to wait until the changes introduced by the Respect@Work Act take effect (December 2023). You already have a series of rights and options available to you.
Sexual harassment and discrimination on the ground of sex on the workplace is prohibited in a number of ways, including under:
- the Sex Discrimination Act 1984 Cth
- State and Territory anti-discrimination laws;
- The General Protection provisions under the Fair Work Act 2009;
- Workplace health and safety laws; and
- For some public sector employees, state workplace relations laws.
If you are being sexually harassed in the workplace it is important that you seek legal advice ASAP to learn about your rights and how you can go about protecting yourself in the workplace.
Sexual harassment is unlawful and is not okay.
At Rubix Legal our passion is to help you find your voice in the workplace. We frequently assist employees and workers who have been subjected to sexual harassment in the workplace. If you would like to find out more about how we can help, you can book a complimentary 20 minute consultation with one of our employment lawyers.
Our lawyers will be able to answer any questions you may have about sexual harassment in the workplace.
