New rules on sexual harassment – what you need to know.

What are the sexual harassment changes that came into effect in March 2023 and what steps you should take now?

Sexual harassment was unlawful before the recent changes. However, now sex-based harassment will be too.

Sex-based harassment means harassing another person on the basis of their sex where it is anticipated that that person would be offended or humiliated. To give a clear example – No, it is not okay to respond to Jane that it must be her time of the month if she disagrees with you.

For someone to be found to have engaged in sex-based harassment, their behaviour must be “seriously demeaning”. Seriously demeaning is not defined but we think it is likely to follow the reasonableness test, i.e. that a reasonable person would consider that offence or humiliation has taken place.

The amendments now also expand employers’ responsibility in managing sexual or sex-based harassment from their employees to anyone who has a workplace relationship with your organisation – contractors, consultants for example.

The changes also extend to any person who permits sexual or sex-based harassment. These extended obligations are not just on employers, but also on employees who encourage this behaviour.

It begs the question about the role of bystanders, leadership, and culture.

The new changes require employers to actively prevent sexual and sex-based harassment, sex discrimination and victimisation, rather than just responding when a complaint is made. This is known as a “positive duty” and new regulatory powers have been given to the Australian Human Rights Commission to investigate and enforce compliance with this positive duty.

The Commission’s compliance powers will commence in December 2023, giving employers time to make changes to ensure they comply with these new obligations.

Employees can now apply to the Fair Work Commission for a “stop order”. So employees who reasonably believe that they have been sexually harassed at work can apply to the Commission for an order to stop the harassment.

Steps to take now:

1. Conduct a risk assessment: A staff feedback process such as a staff engagement survey is a great way to do this. You may already have a standard set of broad engagement questions – we recommend expanding on those to include specific questions to get insight into any exposure or risk so you can take steps to address them.
2. Make sure your employees – and anyone else who has a workplace relationship with your business – understand what is acceptable and what is not.
3. Lead from the top with your message on expectations – at the #AICD Executive Briefing late last year, Ann Sherry AO FAICD highlighted sexual harassment as a Board issue, noting that Boards should consider what is required of them including knowing if their organisation is managing this area well. We anticipate legislation outlining directors’ responsibilities in this area and recommend this as a board-level responsibility in addition to a Leadership/Management-level – responsibility. The risk assessment approach outlined above should include board-level reporting and monitoring to ensure that risks are surfaced, managed, monitored, and any risk mitigated.
4. Update employment contracts to expressly include sexual harassment within the definition of serious misconduct.
5. Ensure that you have policies in place that reflect the changes and make sure they are easily accessible. There are great cloud-based HR platforms available that manage this very well. Look for a platform that comes pre-populated with compliant policies that are underwritten by employment lawyers, and that are updated as changes occur. Also, look for one that creates an audit trail of policy releases and acknowledgments by employees/others.
6. Ensure that an appropriate framework is in place to manage any claims.
7. Implement regular sexual harassment training for all staff – we recommend that this training be part of your Onboarding process, and repeated at least annually.

The new laws clarify that all Australian workplaces must take action to prevent and manage sexual harassment.

If you need help navigating an approach to these new laws, get in touch with us at [email protected].