Greater protection from harassment at work

Various recommendations of the Respect@Work report issued in March 2020 will be implemented following the passage of legislation.

The changes are intended to strengthen and streamline the national legal frameworks that deal with sexual harassment.

Key changes include:

1. Prohibiting “sex-based harassment” under the Sex Discrimination Act (which currently prohibits sexual harassment and sex discrimination).

This concept covers unwelcome conduct of a seriously demeaning nature based on the sex of the person or characteristics of their sex, in circumstances where a reasonable person would have anticipated the possibility that the person would be offended, humiliated or intimidated.

Circumstances to be taken into account expressly include the relationship and any power imbalance between the individuals. Unlike sexual harassment, the conduct does not need to be sexual in nature.

2. Ancillary liability provisions

These provisions effectively prohibit a person from assisting or permitting another person to engage in sexual harassment or sex-based conduct.

3. “Stop orders” for sexual harassment

The Fair Work Commission will be able to issue “stop orders” where a worker has experienced a single instance of sexual harassment at work, within the existing stop-bullying jurisdiction.

This is intended to provide a quick avenue for redress, and as with bullying orders, the Commission will have broad powers to make orders to prevent further sexual harassment, which may impact on an employer’s operations and management of staff. Relevantly, orders may be sought by workers which includes not only employees but also contractors, sub-contractors and volunteers.

4. Valid reason for dismissal

Confirming that sexual harassment in connection with employment is a valid reason for dismissal, making it clear that employers can take disciplinary action.

5. Compassionate leave for miscarriage

Employees will be entitled to an additional two days’ paid compassionate leave if they have a miscarriage (or their spouse or de facto partner has a miscarriage).

6. Time period to make a complaint

The time for making a complaint of discrimination or harassment has been extended to 2 years.

7. Definition of “worker” extended

Extending protection under the Sex Discrimination Act by expanding the definition of “worker” to include all paid and unpaid workers, volunteers and interns.

Generally, the changes will take effect once the Bill receives royal assent. However, the “stop orders” regime will be delayed by 2 months to allow the Fair Work Commission to prepare its processes.

Employers can be liable for unlawful harassment conduct, unless they took reasonable steps to prevent it. The action outlined below will help to establish a reasonable steps defence to any claims.

What should employers do?

Review and update policies to include:

• sex-based harassment, to ensure workers know what is expected and that you are taking all possible steps to prevent it; and
• include compassionate leave for miscarriages.

Review existing complaints processes to:

• ensure complaints can be made by all workers; and
• provide a streamlined process to manage complaints in-house as far as possible (where complaints are managed effectively, it is less likely that a “stop order” application will be made).

Consider providing refresher training to staff on standards of conduct expected at work, and to managers in respect of their obligations and relevant liability provisions.

Thynne + Macartney can review your policies and processes and deliver training to staff, to ensure your business is taking reasonable steps to prevent harassment. Contact us to discuss how this could be delivered for your business.