Quite recently, the Federal government introduced new legislation to end sexual harassment and remediate some of the concerns surrounding the lack of support for victims and the reactive approach some businesses have taken. These new changes have been implemented through the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill. The Bill signifies renewed efforts to put a stop to harassment within the workforce and businesses are now more than ever liable for protecting their employees.
The new legislation requires that businesses implement changes to the way they have potentially approached sexual harassment historically. Businesses are now required to ascertain risk pertaining to their workforce and accordingly craft a plan to ensure sexual harassment doesn’t occur. Let’s start by getting a clearer understanding of sexual harassment.
What is sexual harassment at work?
It is critical to understand what sexual harassment is and how to handle this type of situation before attempting to eliminate sexual harassment within the workplace. Understanding this allows both businesses and employees alike to recognise the boundaries of their interactions in a work environment.
The behaviours depicted below are some examples of sexual harassment:
• If someone makes a sexual advance that is unwelcome
• If someone requests a sexual favour that is unwelcome
• If someone hints at any kind of unwelcome sexual activity
The above list includes some examples of sexual harassment but is by no means all-inclusive. The amendments to the legislation have cemented that sexual harassment at work is a form of serious misconduct and might be a valid reason for termination of employment under the FW Act.
Moreover, employers have a responsibility to ensure that the working environment is free from sexually permeated or hostile materials and behaviours. Recent case law indicates that the display of obscene materials, crude discussion, sexual innuendo, and offensive jokes could result in a sexually permeated or hostile work environment which can in turn amount to unlawful sexual harassment.
Sexual harassment is not limited only to unwelcome touching or sexually explicit physical contact, it is much more encompassing than that and could take the form of a co-worker making comments about how attractive or desirable a colleague looks and staring or leering.
First and foremost, employers have a responsibility of educating their employees of what sexual harassment is and employers also have the responsibility of recognising inappropriate behaviours in order to address them as they arise.
The factor of power that relates to sexual harassment
There are numerous cases when someone has been sexually harassed, but they feel that their career could be jeopardised if they speak out. Typically, this could be due to the perpetrator being in a position of power. Some people in positions of authority and power, misguidedly take advantage of their position and utilise the power vested in them to intimidate others or to leverage others to get them to do what they want, some examples include securing a job, a promotion, or just to retain a job.
Protecting people in a work environment is essential
The need for proper regulations that protect employees from sexual harassment has always been evident. With that said, there are many situations that demonstrate that employees can feel intimidated and alone after becoming victims of sexual harassment.
The Sex Discrimination and Fair Work Amendment Bill are attempting to ensure that employees can feel protected and treated with fairness in all scenarios. This is an important evolutionary phase to ensure that this type of behaviour stops within the workplace. Employees should feel safe coming to work every day and not have to worry about being subjected to unwelcome sexual harassment.
The Bill has been modified and updated in the following ways:
• Any worker that feels in any way sexually harassed can apply for a Fair Work Commission order to Stop Sexual Harassment.
• When Sexual Harassment is connected to a person’s employment, this could be a valid reason for the dismissal of that individual.
• Anyone who experiences a miscarriage or is the partner of a person who does will be provided two days of paid compassionate leave (unpaid for casuals).
• Discrimination including harassment on the ground of sex is prohibited.
• Complaints by or against judges, public servants, and members of parliament are allowed.
• Protections related to sexual harassment will extend to both paid and unpaid workers and this includes interns, self-employed, and volunteers.
In addition to the above, the period available to make a complaint has been extended from six months to two years under the Sex Discrimination Act.
Final thoughts on the new sexual harassment legislation
These amendments provide a clear message to businesses that sexual harassment ought to be taken seriously and reinforces that it is unlawful. Furthermore, it enables businesses to consider termination of employment by defining sexual harassment as a potentially valid reason for termination. By far and large, it reinforces that workplaces need to be safer and that taking definitive action is sometimes warranted.
On the odd chance that you haven’t updated your policies, we would strongly recommend you do so. Moreover, as indicated earlier in this article, employers ought to undertake a scan of the work environment and assess any risk before implementing a prevention action plan. Last but not least, ensure that you train your new employees when you onboard them and annually retrain existing employees.
At HR Expertise, our HR consultants in Melbourne and across Australia can support with sexual harassment policies, risk assessments, prevention plans, and remedial actions. Contact us today, we would love to work with you.