The landmark Respect@Work Report observed that our legal framework was not effectively preventing sexual harassment because it is focused on addressing and responding to conduct that had already occurred. It called on legislators to shift the focus by requiring duty holders to proactively prevent discrimination and harassment.

Following recent legislative amendments, there is now a positive duty on all employers to eliminate sexual harassment. Further, the Fair Work Act 2009 (Cth) will shortly include an express prohibition on sexual harassment which will attract penalties for non-compliance.

Is your workplace ready? Below we discuss the changes and what you need to do to ensure compliance.

Positive duty under the Sex Discrimination Act

Effective 12 December 2022, the Sex Discrimination Act 1984 (Cth) was amended to include a positive obligation to eliminate sexual harassment.

Under the new provisions, an employer or person conducting a business or undertaking (duty holder) must take "reasonable and proportionate measures" to eliminate, as far as possible:

  • sexual harassment
  • sex based harassment
  • conduct that subjects a person to a hostile work environment
  • victimization

Sex based harassment prohibits unwelcome conduct of a demeaning nature on the ground of sex. In short, it's designed to tackle sexism. The hostile work environment prohibition is designed to capture conduct such as such as displaying obscene or pornographic materials, general sexual banter, or innuendo and offensive jokes, which although not necessarily directed at a particular individual, can create a sexually charged or hostile environment causing one sex to feel unwelcome.

The meaning of 'reasonable and proportionate measures' will vary between duty holders in accordance with their particular circumstances and size, but can include implementing policies and procedures, collecting and monitoring data, providing appropriate support to workers and employees, and delivering training and education on a regular basis.

Importantly, and in a significant change, the Australian Human Rights Commission (AHRC) will be empowered to monitor and assess compliance with the positive duty including:

  • Conducting inquiries and providing recommendations for compliance
  • Issuing compliance notices
  • Applying to federal courts to direct compliance with a compliance notice

To provide employers with sufficient time to get their house in order, the AHRC powers will not commence until 12 December 2023.

Following the amendments, the AHRC will also have the power to commence inquiries, on its own motion, into alleged systemic unlawful discrimination. Unions and other groups will also be able to bring representative claims to court.

Prohibition on sexual harassment under the Fair Work Act

On 6 March 2023, an express prohibition on sexual harassment will commence under the Fair Work Act 2009 (Cth). A contravention will attract penalties in the same manner as the general protections jurisdiction and the employee will be entitled to seek damages.

The employer will be vicariously liable for the contravening conduct unless it can demonstrate it took all reasonable steps to prevent it.

An aggrieved person, or their industrial association, can make an application to the Fair Work Commission for a "stop sexual harassment order" or request the FWC to otherwise deal with the dispute.

The aggrieved person will have a period of 24 months after the alleged contravention to file the application, but only in relation to conduct that occurs after 6 March 2023.

If the application is not resolved through conciliation, the parties can consent to arbitration by the FWC. The FWC will be empowered to make orders for compensation, lost remuneration, and / or an order requiring a person to perform any reasonable act, or carry out any reasonable course of conduct, to redress the loss or damage suffered. If the parties do not consent to arbitration by the FWC, the applicant can make a court application and also seek penalties of up to 60 penalty units for an individual or up to 300 penalty units for a corporation.

The Fair Work Ombudsman will also be empowered to prosecute contraventions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.