A new positive duty on employers is required to prevent workplace sexual harassment, sex discrimination, and victimisation.

Changes to the law

Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, now prohibits sexual harassment in connection with work.

The Respect at Work Amendment Act aims to make sure more workers are protected and empowered to address unlawful sexual harassment in the workplace. The Respect at Work Amendment Act has changed the Fair Work Act 2009 by:

• introducing definitions of ‘sexually harass’ and ‘sexually harassed at work
• expanding the jurisdiction of the Fair Work Commission to deal with sexual harassment claims
• requiring the Fair Work Commission to consider the power imbalance between the parties when making orders in relation to sexual harassment claims
• allowing the Fair Work Commission to make orders to stop sexual harassment.

The Fair Work Act has been amended to prohibit sexual harassment in connection with work, including in the workplace. These changes apply from 6 March 2023 and expand the previous protections around sexual harassment in the workplace.

What does the new positive duty mean to you?

This important change requires employers to shift their focus to actively prevent workplace sexual harassment and discrimination, rather than responding only after it occurs. The new positive duty imposes a legal obligation on employers to take proactive and meaningful action to prevent workplace sexual harassment, sex discrimination, sex-based harassment, and conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex and victimisation from occurring in the workplace or in connection to work.

What is sexual harassment?

A person sexually harasses another person if:

• they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
• they engage in other unwelcome conduct of a sexual nature in relation to the person harassed;
• in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated, or intimidated.

The intention of the alleged harasser is not relevant. An advance, request, or other conduct may be sexual in nature even if the person engaging in the conduct has no sexual interest in the person towards whom it is directed, or is not aware that they are acting in a sexual way.

Conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person.

Who is protected?

These laws protect certain workers in Australia including future workers. They also protect people conducting a business or undertaking.

A worker includes:

• an employee
• a contractor or subcontractor
• a small business owner who works in the business
• an outworker
• an apprentice or trainee
• an intern
• a work experience student
• a volunteer.
• a self-employed person or sole trader.

Examples of sexual harassment

• inappropriate staring, leering, or loitering
• unwelcome touching
• suggestive comments or jokes, insults or taunts based on sex, or sexual gestures
• using suggestive or sexualised nicknames for a person
• persistent unwanted invitations to go out on dates
• intrusive questions or comments about a person’s private life or body
• unnecessary familiarity, such as deliberately brushing up against a person
• displaying material of a sexual nature in the workplace
• communicating sexually explicit material in person or through phone calls, online interaction, email, social media or text messages.

How can you apply your positive duty?

The adoption of workplace prevention and response strategies can help you apply your positive duty by;

• providing information, instruction, training, and support about the importance of preventing and addressing sexual harassment in the workplace
• creating a trusted, respectful, safe, and supportive workplace culture where people feel comfortable speaking up
• addressing unwanted or offensive behaviour early
• supporting your people with your Employee Assistance and health and well-being programs
• creating reporting avenues where your people can raise concerns or report an incident of sexual harassment or other inappropriate workplace behaviour
• encouraging reporting of sexual harassment and having effective complaints procedures
• considering best practice reporting processes, to prevent psychosocial hazards at work
• measuring the risks in your business to gain an understanding of the nature of sexual harassment, when, where, and how it occurs – who is involved and what form it takes

Everyone has the right to be safe and free from sexual harassment while at work. Likewise, everyone has a role to play in preventing workplace sexual harassment. If you do have any specific questions, or if we can help you develop or amend your internal documents to support these changes, don’t hesitate to reach out.

Written by Linda Davey