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The Federal Government’s proposed new laws will impose rigorous standards to combat workplace sexual harassment
Recently, sexual harassment in the workplace has attracted increased attention due to high-profile Australian cases, the worldwide #MeToo movement, and the Australian Human Rights Commission’s landmark national inquiry, Respect@Work. As a result, the Federal Government has proposed new laws to combat workplace sexual harassment. Employers must be aware of the potential changes and be ready to implement complying workplace policies.
What is sexual harassment?
Federal laws define sexual harassment as:
“… an unwelcome sexual advance, or an unwelcome request for sexual favours … or … other unwelcome conduct of a sexual nature … 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.
Conduct of a sexual nature includes making a verbal or written statement of a sexual nature.
Various other factors are also relevant, including:
- Gender
- Age
- Sexual orientation
- Relationship status
- Religious beliefs
- Race and cultural practices
- The relationship between the parties
Sexual harassment that happens at work or in connection with employment can be considered sexual harassment in the workplace.
What are the proposed new laws?
The Respect@Work Inquiry was regarded as groundbreaking and a world-first. As part of its findings, Sex Discrimination Commissioner Kate Jenkins recommended a new legal and regulatory model to improve:
“… the coordination, consistency and clarity between the anti-discrimination, employment and work health and safety legislative schemes.”
On 8 April 2021, the Federal Government announced that it would adopt the Inquiry’s recommendations, including:
- Imposing a duty on all employers to take reasonable action to eliminate sex discrimination, sexual harassment and victimisation
- Amending workplace laws:
- So that the definition of serious misconduct includes sexual harassment
- To clarify that sexual harassment can be a valid reason for dismissing an employee
- To allow a worker to apply for a stop bullying order when they are experiencing sexual harassment
Parliament is likely to consider these proposed changes by the end of June 2021.
Are employers liable for sexual harassment in the workplace?
If you’re an employer, you must remember that workplace sexual harassment can have serious consequences for your organisation. Even though the person who engages in sexual harassment is responsible for their own conduct, employers can also be liable. In other words, if the sexual harassment is committed by an employee in connection with their employment, the employer may be vicariously liable.
As an employer, you must take reasonable steps to prevent sexual harassment in your workplace, for example:
- Implementing policies and procedures
- Encouraging staff to report sexual harassment
- Providing information and training
If there’s unwanted or offensive behaviour in your workplace, you must act immediately.
How can MDW help me?
We offer a range of services to help employers prevent sexual harassment or reduce the risk of it happening. For example, we can help you:
- Understand the proposed new laws
- Ensure your policies meet current legal requirements and expectations
- Conduct an audit of your policies to work out whether updates or new policies are needed and how they should be implemented
- Review your systems for managing and addressing sexual harassment complaints
This article was written by Lawyer, Miriam Corbould.
DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can receive from marshalls+dent+wilmoth and other relevant experts.
