Sexual harassment in the workplace

Sexual harassment in the workplace

Recent changes to the Fair Work Act increase practice owners’ responsibility when it comes to sexual harassment in the workplace. AMA (NSW) Senior Workplace Relations Advisor, Felicity Buckley explains.

The introduction of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 will change the way sexual harassment in the workplace is defined and dealt with under the Fair Work Act 2009. These changes come into effect on 6 March 2023. 

The amendments mean that sexual harassment is expressly defined and prohibited under the Fair Work Act and will be separated from other workplace issues such as bullying. The methods that the Fair Work Commission can use to deal with claims of sexual harassment in the workplace will be expanded, and the employer’s level of responsibility in the steps taken to prohibit sexual harassment will increase.

It is important for owners of private medical practices who employ staff to be aware of the changes and the way employers are required to manage the sexual harassment risks within their business. 

What is sexual harassment?

The definition of sexual harassment will remain the same as it is in the Sex Discrimination Act. Sexual harassment includes making an unwelcome sexual advance or request for sexual favours or engaging in other unwelcome conduct of a sexual nature, and in circumstances that a reasonable person would anticipate the possibility of “offending, humiliating or intimidating” the other person.

What do the changes mean?

The intention of the amendments is to expressly prohibit sexual harassment in the workplace. Previously the burden of acting rested with the individual who had been sexually harassed. By incentivising employers to take more accountability in the prohibition against sexual harassment in the workplace, that burden will now be shared. It will also give individuals more options for dealing with workplace sexual harassment.

The new legislation complements the existing prohibition on sexual harassment in the Sex Discrimination Act 1984 and relevant state and territory legislation and does not replace these provisions. 

Who do the new provisions apply to?

The new provisions make it unlawful for a person to sexually harass another person who is:

• a worker in a business; or
• seeking to become a worker in a business; or
• a person conducting a business.

The definition of “worker” has the same meaning as in the Work Health and Safety Act 2011: an individual who performs work in any capacity. This includes employees and contractors, volunteers, trainees, apprentices and students gaining work experience. 

Additionally, the prohibition extends to third parties, such as customers or clients. 

Changes to reporting 

Under the changes, not only can the aggrieved person make an application to the Fair Work Commission regarding sexual harassment, but a representative of the aggrieved person, such as their relevant union, may do so.

An applicant can request the Fair Work Commission make a stop sexual harassment order, and / or otherwise deal with the dispute such as through mediation or conciliation, or by making a recommendation or expressing an opinion.

After these avenues have been exhausted the person making the allegations or the union acting on their behalf can then decide to either apply to have the Fair Work Commission arbitrate the dispute, proceed with litigation, or elect not to continue with the dispute any further. 

What are the impacts to employers?

One of the changes that will most impact an employer is the extension of liability in the prohibition of sexual harassment in the workplace. An employer or principal of a business may be held vicariously liable for any conduct of their employees or agents done in connection with their work. An employer will need to show that they took ‘reasonable steps’ to prevent the sexual harassment to avoid liability. 

Private practices should consider these changes and any steps and measures they need to take including:

• Practical measures to be put in place to eliminate workplace sexual harassment (this will be dependent on the particular circumstances) and may include monitoring email and internet use;
• Updating workplace policies,
• Regular training and education for all staff,
• Providing support to staff.