Next up on our coverage of changes made through the December Fair Work amendments or rather, the Secure Jobs, Better Pay Act, are provisions that cover the prohibition of sexual harassment at work. It’s unfortunate that in 2023 we still need to legislate for behaviour that should have disappeared into the archives with the Carry On movies, but here we are, and you best be across these changes as non-compliance carries significant penalties.

Key to this change is the fact that the Act introduces an express prohibition on sexual harassment in relation to work.

Um, what?

OK, we aren’t saying that people can currently go around sexually harassing colleagues until the 6th March when this legislation is fully enacted. What it does mean however is that there are increased employer obligations when it comes to reporting AND responding to sexual harassment which is tied together with changes made to the Respect at Work Act.

Employer obligations

Fundamentally, the changes mean that employers have a positive duty to take reasonable and proportionate measures to eliminate sexual harassment as far as possible. That is, employers will be deemed vicariously liable for any sexual harassment committed by any of their employees OR agents if the harassment is carried out in connection with the employment.

To be clear, the obligation will cover your current workers, those seeking employment with you or any person conducting business in your workplace or with your workers. And for further clarification, the definition of “worker” is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer. You can see it’s pretty broad and aims to protect anyone working for your business or with your employees.

Positive duty

This is where you need to pay attention.
A positive duty already exists within workplace health and safety laws in that employers key responsibility is to manage or remove any dangers or risks to the physical and psychological health of employees. Coming out of the Respect@Work report, sexual harassment was deemed not to be sufficiently covered as the existing requirements were primarily reactive and employers were assessed only on how they responded to behaviour that had already occurred and a complaint had been filed. A more proactive approach was recommended.

What does this mean for employers?

To comply, employers will need robust workplace policies in place that outline what sexual harassment is and clarifies what is and isn’t appropriate behaviour in the workplace. And it won’t be enough to simply slot a new page into your policy handbook. Employers must be sure that all employees have received the policy and understand them which may mean that a training schedule might need to be implemented.
Further, liability will be assessed on how employers respond to a sexual harassment complaint. Was it responded to in a timely and appropriate manner and was the response in line with the established workplace policies? Or did the employer sit on their hands and assume it would all go away in good time?

If the safety of your workers isn’t enough to make sure you have your sexual harassment policy and procedures in place and taken seriously, the Australian Human Rights Commission is now empowered to proactively investigate workplaces at its own behest. They will be able to make recommendations when it comes to prosecution of employers who breach the new positive duty requirement and there doesn’t even have to be a complaint for this to occur!

Hostile workplace environments

This almost feels like an aside but is also an equally important element to these changes. It is also now an offence to subject another worker to a hostile work environment. We aren’t talking about someone being in a mood and everyone having to tip toe around the cranky one – this is where a person of one sex is made to feel uncomfortable or excluded by conduct such as displaying obscene or pornographic materials, general sexual banter, or innuendo or offensive jokes.

The creation of a hostile work environment is different to sexual harassment in that the behaviour doesn’t need to be directed at any one individual. “We were only having a laugh” is not a defence.

Policies

Blah, blah, policies, blah. Yes, it can get boring and yes, HR does harp on about policies but with good reason.

They are there to protect your business and the people who make it function. The simple act of having well written, up to date policies that are clearly communicated to incumbent as well as new team members will lay out the expectations you have for behaviour and the repercussions for those who choose to ignore them. Policies are even more important than ever in light of these legislative updates and expectations.

So, ask yourself – do you have policies in place? Are they up to date? Has your business changed or grown and do you need a more comprehensive set of polices? Do your team know where they are kept and are they easy to access? Do you know for sure that all of your employees have read your policies and are living up to them as you would expect? Are you following your own policies and delivering a consistent approach when it comes to breaches? Are your managers leading by example?

This is your reminder that policies aren’t just a compliance box you tick off a checklist, so have a chat with your favourite HR consultants (hint: that’s the HR Staff n’ Stuff team) and we can help you work out what you need and how best to house your handbook so that you are meeting best practice expectations and there’s one less thing to worry about when it comes to running your business!