Additional sexual harassment law reforms

Effective 6 March 2023:‍

• there will be a prohibition on work-related sexual harassment included in the Fair Work Act 2009 (Cth); and
• individuals alleging that they have been sexually harassed at work can make an application to the Fair Work Commission to make a stop sexual harassment order and/or to otherwise deal with the dispute.

Businesses will also need to amend their employment policies and procedures to reflect the additional sexual harassment and sex-discrimination law reforms.

Overview

Together, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act) and the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect@Work Act) shepherded in significant changes to a business’ obligations to eliminate work-related sexual harassment and introduced new avenues for individuals who have been sexually harassed at work to obtain legal redress.  

As part of those changes, from 6 March 2023:‍

• there will be a new additional express prohibition against sexual harassment in connection with work included in the Fair Work Act 2009 (Cth) (FW Act), supplementing the existing prohibitions under discrimination laws, which still apply; and
• individuals will be able to make an application to the Fair Work Commission (FWC) to deal with disputes relating to sexual harassment at work.

What changes will be introduced on
6 March 2023?  

From 6 March 2023, there will be a new additional express prohibition on sexual harassment in connection with work introduced into the FW Act. The prohibition will apply to all workers and prospective workers (including employees, contractors, apprentices, trainees, students and volunteers) and includes sexual harassment perpetrated by third parties in the workplace (such as clients or customers).  

Under the changes, an employer may also be held vicariously liable under the FW Act for sexual harassment conducted by an employee or agent, unless it can establish that it took all reasonable steps to prevent the employee or agent from engaging in the sexual harassment.

Additionally, from 6 March 2023, the FWC will receive new powers to hear and resolve sexual harassment applications based on a dispute resolution framework modelled on the current FWC process for resolving general protections disputes.‍

Sexual harassment at work was already unlawful, so what’s changed?

The reforms introduced on 6 March 2023 place an employer’s obligations in relation to sexual harassment squarely within the core piece of Australian workplace legislation, the FW Act.  

At a Federal level, sexual harassment in connection with work has been prohibited by the Sex Discrimination Act 1984 (Cth) (SD Act) and those prohibitions continue to apply. The new sexual harassment provisions in the FW Act largely replicate the existing provisions in the SD Act, adopting the SD Act definition of sexual harassment and mirroring its provisions regarding employer vicarious liability.  

An individual wishing to pursue a claim in relation to sexual harassment under the SD Act is generally required to lodge a complaint with the Australian Human Rights Commission (AHRC) and engage in a conciliation process. If the complaint is not resolved by the conciliation process, the individual can elect to pursue the matter in the Federal courts. Individuals wishing to pursue a claim in relation to sexual harassment may also have the option of pursuing their matter under State-based anti-discrimination legislation and associated State-based dispute resolution frameworks.  

From 6 March 2023, individuals who have experienced sexual harassment at work will have the option of pursuing a claim either under the SD Act via the AHRC dispute resolution process, or under the FW Act through the new FWC dispute resolution process.‍

How will the new FWC dispute resolution framework operate?

Who can make an application?

Under the new FWC dispute resolution process, a sexual harassment application can be made by either:‍

• a person who alleges that they have been sexual harassed (an ‘aggrieved person’); or
• an industrial association entitled to represent the industrial interests of an aggrieved person (eg a union).

The FWC can allow joint applications by two or more aggrieved persons or industrial associations, and for a single industrial association to represent multiple aggrieved persons. Arguably, this opens the door for sexual harassment ‘class actions’ brought by unions.

When making a sexual harassment application, an aggrieved person or industrial association will have the option of requesting that the FWC make a stop sexual harassment order and/or otherwise deal with the dispute.  

What timeframes need to be compiled with?
‍
The timeframe for making a sexual harassment-related application to the FWC is
‍24 months from the date of the contravention, or the last of the contraventions. This is consistent with the time limits for bringing a sexual harassment claim under the SD Act.  

If an aggrieved person makes an application more than 24 months after the harassment took place, the FWC will have the discretion to dismiss the application. It remains to be seen how the FWC will exercise this discretion and whether it will apply the same stringent rules it generally applies to the time restrictions for general protections and unfair dismissal applications or adopt the generally less stringent approach that has been taken by the AHRC.‍

What is the process for resolving an application in the Fair Work Commision?

The FWC dispute resolution framework for sexual harassment applications is modelled on the existing process for resolving general protections disputes.  

Generally, sexual harassment applications must be dealt with by a private and confidential mediation or conciliation. If the matter does not resolve at this stage, and the FWC is satisfied that all reasonable attempts have been made to resolve the dispute, the FWC must issue a certificate to the parties confirming this view.  

Once a certificate has been issued, an aggrieved person can elect to pursue their claim in the Federal courts (and will have 60 days to do so from the date on which the certificate is issued by the FWC), or the parties can, by consent, proceed to an arbitration in the FWC. If the matter proceeds to arbitration before the FWC, the FWC can make orders, including for the payment of uncapped compensation.  

The process for dealing with an application seeking a stop sexual harassment order only is different. In those cases, the FWC must start to deal with the application within 14 days and will determine the process for dealing with the application, which can include requiring a person to attend before the FWC, taking evidence and submissions, conducting a conference, or holding a hearing. The FWC can also make orders it considers appropriate to stop the person from being sexually harassed, however, it cannot make an order requiring a monetary payment.  ‍

Can individuals make a claim under both the SD Act and the FW Act?  

The Secure Jobs, Better Pay Act provides that a person cannot pursue multiple remedies for the same alleged sexual harassment under the FW Act and other anti-discrimination laws. However, a person who makes an application to the FWC for a stop sexual harassment order only is not prevented from subsequently pursuing a remedy for sexual harassment under anti-discrimination law.  

Additionally, the new provisions do not exclude or limit the operation of state or territory anti-discrimination laws that are capable of operating concurrently with the new provisions.‍

What other law reforms have been introduced in relation to sexual harassment and sex-discrimination?  

Respect@Work Act and the Positive duty

One of the most significant changes introduced by the new workplace laws is that employers or any person conducting a business or undertaking (PCBU), now have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible:‍

• sexual harassment;
• harassment on the grounds of sex;
• sex discrimination;
• conduct that subjects a person to a hostile work environment; and
• victimisation in relation to the above

The positive duty came into effect on 12 December 2022 and marks a significant shift in the way employers and PCBUs are required by law to approach sexual harassment and sex discrimination. Employers and PCBUs must take proactive and considered steps to seek to eliminate sexual harassment and other sex-based discrimination in their workplaces.  

From December 2023, the AHRC will be given new compliance powers to enable it to monitor, assess, and enforce compliance with the positive duty.

The New protected attributes

The Secure Jobs, Better Pay Act also inserted three new protected attributes into the FW Act: breastfeeding; gender identity; and intersex status. From 7 December 2022, the protections against adverse action in the FW Act apply to employees and prospective employees who possess these attributes.‍

What steps do employers need to take?    

The reforms introduced by the Respect@Work Act and the Secure Jobs, Better Pay Act mean that employers and PCBUs need to be proactive in seeking to eliminate sexual harassment and other sex-based discrimination in their workplaces. Some measures which will assist to discharge the positive duty and help limit the risk of vicarious liability under either the FW Act or the SD Act will include:‍

• responding to complaints or rumours in an effective, appropriate, and timely manner, including by educating managers and supervisors that there is no such thing as an informal complaint, and of the imperative to take appropriate action to investigate concerns about workplace sexual harassment or sex-based discrimination;
• reviewing your appropriate workplace behaviour policy to ensure it is consistent with the legislative changes, including the introduction of the positive duty;
• developing and implementing regular appropriate workplace behaviour training that incorporates training on the new laws for all staff and maintaining records of staff attendance at these training sessions;
• monitoring workplace culture and implementing measures to promote compliance with the law and policies;
• encouraging or requiring staff to report concerns about sexual harassment or sex-based discrimination to nominated contact people within the business;
• upskilling human resources managers in conducting effective workplace investigations; and
• including sexual harassment and sex-based discrimination as a standing item for board reporting.

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