Sexual Harassment in the Workplace: Updates and Developments

The #MeToo movement and high profile sexual harassment cases in recent years have caused heightened public discourse and scrutiny regarding sexual harassment in the workplace. This, along with the Australian Human Rights Commission’s (AHRC) Respect@Work inquiry and associated findings, has led to the recent reforms enacted through the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.

Stop Sexual Harassment Orders

The key changes to the Fair Work Act 2009 (Cth) (FW Act) include the expansion of the Fair Work Commission’s (Commission) ‘stop bullying’ jurisdiction. Under the expanded jurisdiction, the Commission can now receive applications for orders to stop sexual harassment in addition to its existing powers to make orders to stop bullying at work.

The Commission has recently handed down its first decision in the new ‘stop sexual harassment’ jurisdiction.

Under the FW Act, a worker is sexually harassed at work if the worker is at work and one or more individuals sexually harasses the worker. Sexual harassment can occur where:

• a person makes an unwelcome sexual advance or an unwelcome request for sexual favours to the person harassed; or

• engages in other unwelcome conduct of a sexual nature in relation to the person harassed,

in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

This is not limited to conduct between employees – a person can be sexually harassed at work by another person while in the course of their work (e.g. by a client, customer, supplier, visitor, etc.). Also, a single instance of sexual harassment is all that is required in order to enable a person to make an application (i.e. it does not need to be repeated behaviour).

Under the new jurisdiction, the Commission may make any orders it considered appropriate to prevent a worker from being sexually harassed at work if it is satisfied that the worker has been sexually harassed at work and there is a risk that this will continue, except for monetary orders (such as orders for compensation or damages). Orders may include changing working arrangements, orders for individual/s to stop specified behaviour, regular monitoring to be conducted by the employer, provision of training and support to workers, conducting safety risk assessments in the workplace, among others. The Commission also has the power to refer the conduct to a work health and safety regulator where it deems appropriate.

Failure to comply with a Commission order can lead to financial penalties being imposed.

Commission’s First Ruling

In the Commission’s first ruling in this new jurisdiction, the matter of THDL [2021] FWC 6692 (THDL), the Commission dismissed an application to stop bullying and sexual harassment on the grounds that there was no longer any risk of the Applicant being subject to continued bullying or harassment by the individuals named in the application.

In THDL, the Applicant alleged that she was bullied and sexually harassed by two individuals who were employed by a neighbouring business which operated in the same complex as where the Applicant worked. However, the Applicant’s business had moved out of the complex and the Applicant was no longer working in the complex. As it was held to be unlikely the parties would be in the same location while at work, the Commission found that there is no risk of the alleged bullying or sexual harassment continuing, and accordingly dismissed the application.

Although the application was dismissed, the case does give an indication on the type of applications which we may start to see in the new jurisdiction and also highlights that such applications can go beyond conduct which is only between employees.

Given the Commission will take into account whether an organisation has a policy on sexual harassment and whether the parties have taken steps to comply with that policy before approaching the Commission, it is critical that employers review their current policies on sexual harassment, bullying and grievance handling.

Other Significant Developments

The Respect@Work reforms also includes changes to the FW Act, with respect to the termination of employment and sexual harassment:

• section 387 of the FW Act now clarifies that a valid reason for dismissal may be where a person sexually harasses another person and does so in connection with their employment; and

• the definition of “serious misconduct” under the Fair Work Regulations 2009 (Cth) now expressly includes “sexual harassment”.

As well, in 2021 the AHRC released a report entitled ‘Equality Across the Board: Investing in Workplaces that Work for Everyone’ which emphasised the responsibility of Boards in preventing and responding to workplace sexual harassment. Significantly, the report recommends that Boards should take primary responsibility and accountability in implementing and monitoring sexual harassment governance frameworks, and urged shareholders to advocate for improved transparency and disclosure in respect of what organisations are doing to prevent and respond to sexual harassment. Whilst legislative changes which impose a positive duty on Boards with respect to the reporting of sexual harassment matters have not (yet) been made, the report highlighted the need for employers to shift their approaches to workplace sexual harassment from reactive to proactive.

On 9 February 2022, the Parliamentary Workplace Reform (Set the Standard Measures No. 1) Bill 2022 was also introduced to Parliament which seeks to clarify the duties parliamentarians owe their staff under the Work Health and Safety Act 2011 (Cth) as recommended in the Respect@Work report, among other changes, in a bid to address issues in parliamentary workplaces.

Key Takeways

With legal reforms to prevent sexual harassment in the workplace, and strong public advocacy against sexual harassment expected to continue, employers should be proactive in preventing and responding to sexual harassment in the workplace. Not doing so can expose employers to a wide range of risks, including risks to workplace culture, reputational, legal and financial risks (and potentially criminal liability risks).

Employers also should bear in mind that under work health and safety legislation, employers as PCBUs have a positive obligation to eliminate or minimise risks to the health and safety of its workers under work health and safety legislation, including both psychological and physical risks of harm or injury.

To mitigate these risks, employers should consider taking the following steps:

• conducting a risk assessment of the workplace, managing risks identified, and reviewing this on an ongoing basis;

• ensuring appropriate policies and procedures are in place such as sexual harassment, bullying and discrimination policies, and regularly reviewing and updating policies and procedures;

• implementing fair and confidential frameworks and processes to confidentially and sensitively address sexual harassment grievances;

• ensuring appropriate training is delivered to Boards, management and employees with respect to expected standards of behaviour and any applicable policies, procedures and frameworks in place.