Scott Morrison and the Federal Government have announced a clear initiative to (in principle) accept a significant amount of the 55 recommendations around sexual harassment. There are some overarching themes with the changes and what has been pushed is a more clear path and more distinctive grounds for employees to file sexual harassment complaints, applications and start litigious proceedings against their harasser and by way of vicarious liability – their Employer.
What is sexual harassment?
Under the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act), sexual harassment is:
- any unwelcome sexual advance
- unwelcome request for sexual favours, or
- other unwelcome conduct of a sexual nature in relation to the person harassed
in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
In summary, the sexual harassment is not down to the intention of the person making the comment or doing the action but instead the way the person feels and whether they felt offended, humiliated or intimidated.
Here are 4 major changes that are recommended and accepted in principle by the Federal Government.
Change 1 – Positive Obligation on Employers to take reasonable and proportionate measures to eliminate sexual harassment
Currently, much of the evidentiary burden to prove sexual harassment has been laid with the victim of the harassment. It has often been termed as a heavy burden perpetuating a culture of silence and “being too hard”.
The Respect@Work report commissioned by the Australian Human Rights Commission is recommending a positive obligation much like say, General Protections applications and Workplace health and safety be inserted in the Sex Discrimination Act. This obligation will be to take reasonable and proportionate measures to eliminate sexual harassment.
The practical effect will require an Employer to take positive steps to eliminate sexual harassment risks this may include:
- more specific sexual harassment training
- sexual harassment specific policies
- cultural lockdown on industries and areas where traditionally sexually inappropriate behavior has either been explicitly accepted or impliedly accepted (or even ignored)
- investigation obligations which may require more scrutiny and transparency
Change 2 – Expansion of the definition of serious misconduct under the Fair Work Act
Some employment contracts already explicitly provide that proven sexual harassment is serious misconduct. Which would therefore give options for an Employer to summarily dismiss an employee who has been found to be a harasser.
However the recommendation put forward is that the Fair Work Act specifically provide that sexual harassment is conduct viewed as serious misconduct. This makes sense and will mean Employers will have a greater ability to defend an unfair dismissal claim where an employee has been terminated due to sexual harassment.
With this expansion of definition the harasser will need to prove the sexual harassment did not occur to get over the issue of the serious misconduct.
The introduction of a stop sexual harassment order application akin to a stop workplace bullying order is also being recommended. Whether that will have compensatory elements remains to be seen.
Change 3 – Psychological health will become more prevalent in workplace health and safety
As part of the obligations to eliminate sexual harassment psychological health will need to be highly considered. There will also be a requirement to identify psychosocial risks.
This will no doubt require more management training on sexual harassment – how to spot any psychosocial risks and what to do if psychological health is being impacted. The purpose is to eliminate and prevent sexual harassment claims and associated issues.
Change 4 – Judges and Politicians will be subject to the sexual harassment laws
Another big turnaround is subjecting Judges and Politicians to sexual harassment laws. This will allow workplaces in Government and public service to be under the same sexual harassment laws as other workplaces – meaning we may see more and more claims of sexual harassment from staffers and public servants.
It also may lead to a much more broader change internally around culture, policy and procedure.
The overarching obligations that will be placed on Employers requires time to prepare. What steps could you take now? Give NB Lawyers – Lawyers for Employers a call and we can offer an obligation free consultation to work through some of these steps worth taking. Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.