A crucial change in the law contains an express prohibition on sexual harassment in connection with work. The new law also brings vicarious liability to the fore – employers will now need to prove they took steps to stop the offending conduct to avoid being held liable. Further, the threshold is now that the offending conduct be ‘in connection with work’ and not merely ‘while at work’ – in that sense, past and future conduct are within the ambit of the new contravention provisions.[1]
From 6 March 2023 the ‘Prohibiting sexual harassment in connection with work’ amendment to the Fair Work Act 2009 (FW Act) takes effect. The amendment is given effect by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.
Vicarious Liability
Where an employer (or, as the case may be, the principal of an independent contractor) fails to prevent sexual harassment, vicarious liability is now statutorily imposed on the employer/principal.[2] This means that penalty orders for an act of sexual harassment by an employee or agent (e.g. an independent contractor) now apply in relation to the employer/principal.
The employer/principal can, however, avoid liability if it can prove it took all reasonable steps to prevent the respondent employee or agent[3] (i.e. the person accused of sexual harassment) from sexually harassing the aggrieved person.[4] Because ‘reasonable steps’ is not defined, the threshold will vary based on a situation’s unique circumstances.
It is not just current workers who employers/principals need to protect
Persons capable of being sexually harassed go beyond current workers. The new law extends protection to:
- A person seeking to become a worker, and;
- Non-workers conducting a business or undertaking (e.g. building staff such as cleaners, security, concierge, etc.).[5]
Pre-existing obligations already required employers to generally ensure the health and safety of employees and relatively new obligations minimise eliminate psychosocial risks to health and safety the vicarious liability risks should spur employers/principals to be extra diligent.
Controls should be adapted or put in place to fulfil the new positive obligation to prevent sexual harassment to avoid what would undoubtedly be a costly and reputationally damaging process. Such controls will include:
- Preparation of sexual harassment policies;
- Reviews of sexual harassment policies considering the changes;
- People Management training to provide people managers with the tools to deal with sexual harassment
New Intervention Options for Aggrieved Persons
An aggrieved person can now apply to the Fair Work Commission (FWC) to deal with a sexual harassment dispute.[6] As a baseline, the FWC may do either or both of the following to deal with the dispute:
- Make a stop sexual harassment order; and/or
- Otherwise deal with the dispute.
Stop sexual harassment order
Should an aggrieved person make an application to the FWC, the FWC will be compelled otherwise to deal with the dispute’[7] and, should a court application consist of more than just a stop sexual harassment order, the FWC must mediate or conciliate the dispute.[8] Failing that, the dispute may be arbitrated by the FWC but only if consent is provided by both parties.[9] If both parties do not provide consent, the aggrieved person can make an application to the Federal Court or Federal and Family Circuit Court (Court) – the avenue for:
- injunctions,
- pecuniary penalties, and
- compensation.
Note, though, that the FWC may still make an order for the payment of compensation to an aggrieved person, including for remuneration lost, and may order that a person perform any reasonable act, or carry out any reasonable course of conduct, to redress loss or damaged suffered by the aggrieved person.[10]
In practical terms, the changes provide financial penalty and compensation avenues than other more limited applications such as workplace bullying.
Court intervention
An aggrieved person can make a sexual harassment court application to:
- Seek the Court’s intervention, by way of court order, to prevent, stop, or remedy the effects of the sexual harassment; and/or
- Seek that the Court conclude the matter, by way of court order, through awarding compensation for loss that the aggrieved person suffered because of the sexual harassment.[11]
However, the ability to make a court application can only be exercised where the FWC has dealt with the dispute and is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.[12] This means the FWC must have issued a certificate to that effect, and that the the court application is made within 60 days[13] (or such period as the court allows).[14] Those two prerequisites will not be necessary, however, where the aggrieved person is simply seeking an interim injunction.[15]
An aggrieved person should acknowledge that an agreement with the respondent to have the FWC arbitrate the dispute will generally mean that a sexual harassment court application cannot be made.[16] They should further acknowledge that once the matter concludes in any form, it cannot be initiated again.[17]
Employers/principals should be aware that, in addition to compensation being awarded, the Court may make a pecuniary order to a maximum of $16,500 for individuals and $82,500 for body corporates.[18]
Protect Your Business
Employers/principals should review their work health and safety frameworks to ensure their new positive obligation to prevent sexual harassment is adhered to. NB Employment Law can assist with this by providing:
- policies,
- procedures, and
- guidance on People management training, all of which are aimed to prevent and address sexual harassment.
Check out our article, ‘4 Major Steps An Employment Lawyer Takes To Defend A Sexual Harassment Claim For An Employer’, for vital information on sexual harassment generally:
If you are an employer and need assistance or guidance on the new Sexual Harassment provisions NB Employment Law offer an obligation-free consultation and are happy to help. Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.
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Written By
Director
Assisted By
Ben Bosworth
Law Graduate
About the Author
Jonathan Mamaril leads a team of handpicked experts in the area of employment 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.
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[email protected]
+61 (07) 3876 5111
[1] FW Act, Part 3-5A, Division 2—Prohibiting sexual harassment in connection with work.
[2] FW Act s 527E.
[3] FW Act ss 12 and 527F.
[4] Ibid.
[5] FW Act s 527D(1)(c)
[6] FW Act s 527F.
[7] FW Act s 527F(1)(b).
[8] FW Act s 527R(1)(b), Note.
[9] FW Act s 527S(3).
[10] FW Act s 527S(3)(a).
[11] FW Act ss 545(2)(a)-(b).
[12] FW Act s 527F, Note 1.
[13] FW Act s 527T(a).
[14] FW Act s 527T(3)(c), Note; Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[15] FW Act ss 527T(b) and 545(2)(a).
[16] FW Act s 527T(a), Note.
[17] FW Act s 734(1).
[18] FW Act ss 539(2) and 546(2)(b).