There has been a huge amount of developments in employment law over the last few months, and sometimes it is hard to keep up with all that is changing. In this article we break down the two key developments in relation to sexual harassment and sex discrimination law that employers need to be aware of – and to doing something about.

 

#1 The new “positive duty” to eliminate sexual harassment and sex discrimination in the workplace

Whilst sexual harassment and sex discrimination in the workplace have been against the law for a considerable amount of time, the new “positive duty” on employers to eliminate harassment and discrimination significantly alters the way employers must approach these matters.

Prior to these changes, discrimination law would only tend to intervene once a complaint of harassment or discrimination had arisen. If someone had been sexually harassed in the workplace the victim would have a right to make a legal claim against the perpetrator, but also against their employer. The employer would be able to avoid liability only if they could show that they had taken all the steps they reasonably could have done to prevent the harassment from occurring.

It would be possible, therefore, for an employer to be able to avoid liability by showing that they had adequate policies and procedures in place regarding harassment. If they could show that they had clearly educated their workforce that harassment was not tolerated in the workplace, and they had taken all other reasonable steps to seek to prevent harassment occurring but someone committed sexual harassment anyway, there was a logic in the fact that the employer should not be held accountable.

As will be seen from this process, the law only “bites” after an issue of sexual harassment has taken place, and depends on the victim being brave enough to bring a complaint in the courts.

The new “positive duty” to eliminate sexual harassment (and sex discrimination) shifts the focus away from when an incident has occurred or a complaint has been made. Going forward all employers will have a duty to take steps to prevent harassment and discrimination from occurring, and they can be found to have breached this duty even if no harassment or discrimination has taken place

This means that the approach to harassment / discrimination will need to be similar to how employers approach work health and safety risks, ie a “risk assessment” approach. 

We like to compare the situation to that of work on a building site. If a health and safety inspector attends a building site where no-one is wearing a hard hat and scaffolding has not been secured properly, there would be no surprise that a business could face significant fines for having a dangerous workplace, even though no-one has been injured yet.

Similarly with sexual harassment and discrimination, the Australian Human Rights Commission (AHRC) will have new powers to inspect workplaces and the steps that employers are taking to guard against sexual harassment and sex discrimination occuring. If they find that adequate steps have not been taken, then an employer can be found to have breached their duties even if no sexual harassment or discrimination has occurred.

 It is also important to remember that this duty will apply to harassment that occurs to employees at the hands of their colleagues, but also harassment from clients and customers.

The duty is phrased in terms of reasonable steps being taken to eliminate harassment and discrimination – the law recognises, therefore, that small businesses will have less resources to dedicate to these matters.

Although the positive duty became law in December 2022, the AHRC will not have powers to enforce the duty until December 2023 which means businesses have some time to “get their houses in order”.

We would recommend that all employers consider taking the following steps to show that they are complying with the new duty:

1. Carry out an audit of areas of risk of sexual harassment or sex discrimination occuring in the workplace and implement appropriate controls to deal with the risks. This should involve a consideration of how is harassment / discrimination likely to occur in your workplace, eg:

    • Do employees work alone without supervision, so are at risk of harassment due to there being no witnesses present?
    • Do particular managers have abilities to hire and fire without any oversight from others (and so there are risks that they may be making decisions on discriminatory grounds)?
    • Does the physical environment of your workplace create risks of harassment occurring (eg 1:1 meetings take place in private rooms where no-one would be able to see if unwelcome conduct was occuring)?
    • Ensure that the business has appropriate policies and procedures to deal with sexual harassment and sex discrimination which have been updated to be in line with new changes to legislation.

2. Ensure that the business has appropriate policies and procedures to deal with sexual harassment and sex discrimination which have been updated to be in line with new changes to legislation.

3. Ensure that all employees are adequately trained in regards to sexual harassment and sex discrimination (ie what is unacceptable behaviour and how to raise a complaint) and that all mangers are adequately trained in dealing with issues of harassment and discrimination that arise. Such training should be repeated at reasonably regular intervals.

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We are developing a number of tools to assist employers with an audit of risks. We also have up-to-date workplace policies relating to harassment and discrimination available to our clients.

 

#2 The new offence of having a workplace environment that is “hostile on the ground of sex”

Whilst most people would understand that sexual harassment that is directed at a particular person would be against the law – for example, lewd comments made about them, or unwelcome physical contact-  the new offence focuses on matters that are not directed at a particular person.

For example, an employer will be found to have committed an offence if there are inappropriate materials displayed in the workplace or online (pornographic posters or imagery, etc) or if there is general workplace chat or banter that is sexist in nature – even if this is not directed at a particular person.

The idea behind the offence is that in workplaces where these matters occur, there are greater risks of “direct” sexual harassment occuring.

The new offence has been law since December 2022, and the new positive duty to eliminate harassment and discrimination (discussed above) also obliges employers to take reasonable steps to eliminate behaviour that creates a hostile work environment.

As above, we would recommend that employers take the same steps to deal with these matters, i.e.: an audit of risks coupled with the implementation of appropriate measures to deal with such risks; ensuring that appropriate policies and procedures are in place; and ensuring all employees receive regular training on these matters.

 

What else has changed in this area?

There have been a number of other amendments to the law, such as a new simple claims process to bring sexual harassment claims in the Fair Work Commission and a ban on pay secrecy clauses in employment contracts (to promote better pay equity). To read more about these please see our earlier article.

If you require any assistance in addressing these matters – please do not hesitate to contact us.

 

Sexual Harassment and Sex Discrimination Audit & Risk Assessment Tool

This tool assists businesses comply with their new positive duty to eliminate sexual harassment and sex discrimination. It will help you identify risks of these matters occurring in your workplace and assist you in identifying appropriate controls to put in place to manage those risks.

Sexual Harassment and Sex Discrimination Audit & Risk Assessment Tool

 

About HR Connect

HR Connect is one of Australia’s leading providers of HR and workplace safety advice service, designed to help small business owners make confident and compliant business decisions.

If you need any guidance on these changes or how to apply these to your employees, please reach out to the HR Connect team for further assistance.

 

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.

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