Publications

Sexual harassment at the workplace – additional protections for employees and other types of workers

Published on April 17, 2023 by Peter Punch

Introduction

As remarked upon in a recent introductory article on the massive changes to Australian workplace relations law made by the Commonwealth Parliament in late 2022 [1], the SJBP Act makes the most important changes to the law on sexual harassment in the workplace since the commencement of the Sex Discrimination Act 1984 (Cth).

We will be examining the origins of these reforms and the details of the changes made, with comments thereon as appropriate. This will be done in two parts:

• The first part in this article, which provides an overview of the reforms; and
• The second part in an article to be published soon, examining the new expanded jurisdiction of the Fair Work Commission in relation to sexual harassment disputes.

 Overview of the reforms

Part 8 of Schedule 1 to the SJBP Act introduces a new Part 3-5A in Chapter 3 of the FW Act, that Part being entitled “Prohibiting sexual harassment in connection with work”, together with a number of other ancillary provisions in connection with the operation of that new Part.

These new measures form a significant part of the Government’s response to the Human Rights Commission’s major report on this subject, “Respect@Work ”. Those measures, together with some major amendments to Federal anti-discrimination laws[2] implemented key recommendations of the “Respect@Work” Report by introducing:

• an express prohibition in the FW Act on sexual harassment at or in connection with work;
• a much expanded role for the Fair Work Commission in dealing with disputes over sexual harassment allegations and matters;
• an expanded suite of processes and remedies to assist alleged victims of sexual harassment ending/preventing the conduct complained of, and obtaining compensation for past conduct they have suffered from; and
• a positive duty on employers and others conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible:
  • discrimination on the ground of a person’s sex,
  • sexual harassment of a person,
  • conduct that subjects a person to a workplace environment that is hostile on the ground of sex, and
  • acts of victimisation that relate to allegations, complaints or proceedings in relation to any of the above mentioned categories of sexual discrimination/harassment.

The measures in the SJBP Act (summarised in paragraphs (i) to (iii) above) came into operation on 6 March 2023. Those measures, in combination with those contained in the Respect at Work Act[3](summarised in paragraph (iv) above), constitute the most substantial and important set of changes to workplace law on the subject of sex discrimination and sexual harassment since the introduction of the SDA.[4]

A following is a summary of the major elements of these legislative initiatives.

Wide reaching prohibition on sexual harassment in the workplace

New Section 527D imposes a prohibition on sexual harassment in the workplace that extends beyond employers and employees to in effect, everyone in or connected to the workplace. It does this by imposing a duty on a person not to sexually harass another person who is a “worker” in a “business or undertaking”, or a person seeking to become such a worker. To ensure the maximum possible reach of this duty the definitions of the terms “worker” and “business or undertaking” are adopted from the  Federal Work Health and Safety statute [5] – thus reaching not only employees, but also contractors and most types of volunteers, as well as persons who are seeking to become such workers. It then also embraces the other side of the coin as well – the duty extends to not sexually harassing a person who is conducting a business or undertaking (e.g. a worker harassing a sole trader or partner carrying on a business themselves).

Breach of these prohibitions can result in the perpetrator being liable to a civil penalty up to 60 penalty units, or currently $16,500.00.

Extension of vicarious liability

Section 527E extends liability for a breach of the prohibitions imposed by Section 527D onto a person whose employees or agents breach the prohibition unless that person proves that they “took all reasonable steps to prevent the employee or agent doing the acts that would contravene Section 527D”.

This provision effectively extends into the FW Act the presumptive vicarious liability of a person for the acts of that person’s employees or agents, equivalent to the measures to that effect already found in various Federal and State anti-discrimination statutes (e.g. Section 106 of the Sex Discrimination Act 1984 (Cth)).

This provision’s practical effect, when coupled with the procedures and remedies that the SJBP Act introduces in relation to sexual harassment complaints, is to require employers and business operators to have policies, systems and practices in place that will prevent or minimise the prospects of sexual harassment occurring in or in connection with the workplace. Employers and businesses thus need to check that their policies and systems in this regard are adequate, and to take action to ensure workplace practices are consistent with those policies. In addition or alternatively, they need to obtain specialist advice to make sure their policies, systems and practices are ready for the new enforcement mechanisms that the SJBP Act implements.

Fair Work Commission – new jurisdiction

While new Sections 527D and 527E of the FW Act are central elements of the reforms in relation to sexual harassment in respect of the workplace, at least as important are new measures substantially enhancing the role of the Fair Work Commission (FWC) in dealing with this subject.

These new measures are examined in the second part of this Article soon to be published.

P J Punch