Sexual harassment amendments to FW Act commence 6 March 2023

The provisions of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 that provide for greater protection against sexual harassment in the workplace come into operation on 6 March 2023.  The provisions give effect to the recommendation of the Australian Human Rights Commission’s Respect@Work Report to make legislative amendments to enhance the ability of employers and workers to effectively address sexual harassment in the workplace.  The new provisions expand the FWC’s power to make stop sexual harassment orders, which commenced in 2021, also in response to the Respect@Work Report, and further provide:

  • for an expanded definition of “worker”
  • that workers may make joint applications
  • that unions may bring sexual harassment claims on behalf of workers
  • for a vicarious liability provision for employers.

In addition, federal sex discrimination legislation has been amended to impose a positive duty on employers to prevent sexual harassment.

New FW Act procedures

  • It will be unlawful to sexually harass another person where they are a worker in a business, seeking to become a worker, or conducting a business.  “Worker” includes employee, contractor, subcontractor, outworker, apprentice, trainee, work experience student and volunteer.
  • If an employee or agent of a “principal” contravenes the provisions, the principal will be held liable unless they prove that they took all reasonable steps to prevent the contravention.
  • A person, 2 or more persons, or an industrial association on their behalf, may apply to FWC for either a Stop Sexual Harassment Order, or to otherwise deal with the dispute, or both.  Applications must be made within 24 months of the alleged contravention.
  • The FWC may make a Stop Sexual Harassment Order if it finds that harassment has occurred and there is a risk that the aggrieved person will continue to be sexually harassed.  In making orders, FWC must take into account any internal grievance or dispute procedures, and any outcomes from them, and cannot make an order for pecuniary payment.  Contravention of a Stop Sexual Harassment Order is breach of a civil remedy provision.
  • Where the application does not consist solely of an application for a Stop Sexual Harassment Order, FWC must deal with the matter by conciliation or mediation.  If FWC is satisfied that all reasonable attempts to resolve the dispute other by arbitration have been unsuccessful, it must issue a certificate to that effect; and must also advise the parties if it considers that an arbitration would not have a reasonable prospect of success.
  • In resolving the dispute by arbitration, FWC may make orders for compensation and/or lost remuneration; require a person to perform any reasonable act or course of conduct to redress loss or damage suffered by an aggrieved person; express an opinion that sexual harassment has occurred, or that it would be inappropriate to take any further action in the matter.

Positive duty imposed

The Sex Discrimination Act 1984 has been amended to provide that an employer or person conducting a business or undertaking must take reasonable and proportionate measures to eliminate sexual harassment as far as possible.

The Fair Work Commission has issued an Implementation Report on Sexual Harassment in Connection with Work to assist stakeholders, and will be publishing further resources on its website, including a benchbook.

What should employers do?

Employers should take steps to make their workplace compliant with the legislative changes, including:

  • reviewing and updating current discrimination and harassment training modules, and ensuring that training is mandatory, including at senior level
  • reviewing and updating current policies and procedures, including grievance resolution procedures, to ensure that they are consistent with the legislation
  • sending a clear message to all staff from the highest level that sexual harassment will not be tolerated and will have serious consequences
  • if bargaining for a new agreement, ensure that the definition of serious misconduct includes sexual harassment.

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