The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) contained several changes to the Fair Work Act 2009 (Cth) (FW Act).
From 6 March 2023, changes relating to the prohibition of sexual harassment in the workplace will take effect, being:
- the introduction of a prohibition of sexual harassment of workers;
- an ability for an employer to be found vicariously liable for sexual harassment if they are unable to demonstrate that pro-active measures had been taken to prevent the same;
- the creation of an alternative path to pursue sexual harassment claims through the Fair Work Commission (FWC).
Prohibition of Sexual Harassment
The insertion of new provisions to the FW Act will make it unlawful for any person to sexually harass another person who is a worker, is seeking to become a worker or is a person conducting a business or undertaking1.
The definition of “sexually harass” is the same as the definition in the Sex Discrimination Act 1984 (Cth), being where:
Part 3-5A of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.
- the 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, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
The definition of “worker” reflects the definition in the Work Health and Safety Act 2011 (Cth) and includes contractors, employees and volunteers (amongst others).
The prohibition applies where the harassment occurs in connection with the second person falling within the definition of a “worker”. The harassment therefore does not necessarily need to occur in the workplace or even within usual business hours – provided that it is connected with the harassed person being one of the defined types of persons.
Employers will be vicariously liable for the acts of their employees or agents, where the act is done in connection with the employment of the employee or the duties of the agent2.
As with the other vicarious liability provisions of the FW Act, employers may have a defence to such liability if they can prove that they took all reasonable steps to prevent the employee or agent from doing such acts.
Central to these changes is the ability for a joint application to be brought by multiple aggrieved person(s) against one or more perpetrators of sexual harassment. Such an application may be brought by either the aggrieved person(s) or by an industrial association representing their interests.
This can be done via an application to the FWC to:
- make a 'stop sexual harassment order' to prevent future harassment under the current framework; or
- deal with the dispute and seek compensation to remedy past harm caused by sexual harassment under a new dispute resolution framework.
An aggrieved person(s) can make an application to stop sexual harassment and then seek a remedy for past harm caused under the new dispute resolution framework, or simply proceed straight to a dispute application.
The dispute resolution framework is modelled on the existing dispute resolution mechanism for general protections dismissal disputes, being:
Why has this alternative path being created?
A likely primary reason for the alternative path is a costs consideration. A sexual harassment claim via the SDA will go to Federal Court of Australia (Federal Court), following a compulsory AHRC mediation. Once in the Federal Court, costs implications apply – which often acts as a deterrent to applicants (access to justice issues).
By providing for an avenue via the Fair Work Act – where parties are generally expected to bear their own costs in the industrial division of the Federal Circuit and Family Court of Australia (FCAFCOA) or Federal Court – access to justice issues that might dissuade applicants from continuing with a matter due to cost constraints are likely to be removed.
The alternative path also expressly allows an industrial association to represent aggrieved persons in the application for dispute resolution, facilitating access to justice issues by vulnerable persons, who may otherwise be disinclined to bring such actions themselves.
Finally, if a cause of action is instituted via this jurisdiction, the Court will also be able to consider not only damages, but penalties as well. There are currently no statutory prohibitions on obtaining insurance to cover such penalties.
What will this mean for employers?
The new changes to the FW Act expand the employer’s obligations to prohibit sexual harassment in the workplace and require employers to assess their current sexual harassment management practices.
The new provisions require employers to protect a broader range of persons from sexual harassment, including current workers (including employees, contractors and volunteers), prospective workers and anyone conducting a business or undertaking. This will require employers to assess where sexual harassment is most likely to occur within the organisation and take reasonable steps to address those risks and protect workers which fall within the new framework.
Make sure all policies and procedures relating to sexual harassment and discrimination are up to date.
- Make sure all policies and procedures relating to sexual harassment and discrimination are up to date.
- Invest in comprehensive and regular sexual harassment and discrimination training for staff – preferably by way of a presentation.
- Generate forms for all attendees to confirm that they have undertaken the training and understand its importance.
It is important to understand what the FW Act changes mean for you. For additional advice, contact Barry Nilsson’s National Employment Practices Liability team here.
This article was drafted with assistance from Anastasia Livanova, Tinashe Makamure and Jason Xue.
1 Part 3-5A of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.
2 Section 527E of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.