Sexual Harassment in the Workplace

Sexual harassment is a pervasive problem in Australian workplaces, affecting workers in all industries across the country. In 2020, the Australian Human Rights Commission (AHRC) released the report Respect@Work, detailing the results of a national inquiry into sexual harassment in the workplace. The government subsequently amended federal employment law to incorporate recommendations from this inquiry. This article looks at the purpose of the new law and the implications for cases of sexual harassment in the workplace.

Sexual Harassment in the workplace

Safe Work Australia defines sexual harassment as unwanted sexual behaviour that would make a reasonable person feel intimidated, offended or humiliated. Examples of sexual harassment include:

• leering
• suggestive commentary
• inappropriate physical contact
• intrusive questions about the worker’s body or private affairs
• posting of sexually explicit pictures in workspaces
• unwanted invitations to date or requests for sex

An action does not have to be directly aimed at someone to constitute sexual harassment. Any sexually inappropriate behaviour that makes a working environment hostile to workers can be considered sexual harassment. This prohibition applies to any sexual harassment that occurs in association with employment. This means not only behaviour that occurs within regular hours at the workplace but also during work-related trips, conferences, training courses and work-related social activities.

AHRC report on sexual harassment in the workplace

The Respect@Work Report found that sexual harassment is a pervasive problem that is insufficiently addressed by current legislation. The report concluded that the system for addressing workplace sexual harassment in Australia was convoluted and difficult for victims and employers to navigate. The AHRC recommended a shift from a reactive complaint-based approach to a policy of proactive employer action focused on prevention.

Specifically, the key findings of the report were:

• sexual harassment was a common experience, with one in three Australian workers experiencing harassment in recent years;
• the onus was on the victim to make a complaint, yet only 17% of surveyed workers complained about the harassment that they experienced at work;
• sexual harassment happened in organisations of all sizes and rural, regional and metropolitan settings; and
• the cost of workplace sexual harassment was estimated to cost the Australian economy $3.8 billion in 2018.

Legislative amendments

In light of these findings, the Australian government amended existing workplace law to make employers accountable for sexual harassment that occurs in the workplace and provide greater legal protections for workers. These changes apply to all workers, including employees, contractors and those running a business. Importantly, these changes also apply to others in the workplace, such as volunteers, work-experience students, and job applicants.

The Fair Work Act 2009 now assigns employers a positive duty to take steps to prevent sexual harassment in the workplace. Under these amendments, workers (and unions and the Fair Work Ombudsman) can seek compensation, financial penalties or orders against sexual harassers and employers who fail to take reasonable measures to protect their workers from harassment.

The new laws introduce additional measures to hold harassers and employers accountable for their actions and provide greater protection for workers who face sexual harassment. In this way, the amendment is intended to enhance existing laws contained in the Sex Discrimination Act 1984, or equivalent state or territory law. Under the amendment, workers now have an alternative method to take legal action against harassment.

Workers who believe they were subject to sexual harassment in the course of their employment can choose to make a Stop Sexual Harassment application to the Fair Work Commission (FWC). If the FWC cannot resolve the dispute, the worker (or representative industrial association) can initiate civil proceedings. The Fair Work ombudsman can commence legal action against an employer if there is an alleged breach of the new law.

Applicability of new laws

These changes do not apply to sexual harassment that predates 6 March 2023, or harassment in connection with actions before that date, regardless of whether the harassment was ongoing. In those cases, the worker must claim under previously applicable law.

Role of the employer

The new laws apply to everyone in the workplace, from employers to co-workers, and clients to customers. Employers and companies can also be held vicariously liable for sexual harassment committed by an employee or agent in their employment. Employers can mitigate their liability in this regard by demonstrating that they took every reasonable measure to prevent the harassment.

Employers can abide by the new regulations and better protect their workers by implementing a comprehensive sexual harassment policy that defines prohibited behaviour and details the complaint process. The employer can provide employees with training on these policies and procedures, and educate employees on their options if they experience or witness sexual harassment. In fact, it is vital to create an environment where employees feel safe and supported to report sexual harassment. Employers can build trust with employees by taking complaints seriously and handling any resulting investigation transparently and promptly.

The federal amendments prohibit sexual harassment in association with work and impose a positive duty on employers to prevent this behaviour in the workplace.  Whether you are an employer who needs advice on their legal obligations, or an employee who wants to make a complaint, you should contact the employment law team at Go To Court Lawyers without delay. Phone 1300 636 846 for legal assistance today.