New stop sexual harassment applications and other changes to sexual harassment law on the horizon
On 24 June 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill) was introduced to Federal Parliament. The Bill is the Federal Government’s response to the recommendations made in the Respect@Work Report, which itself followed the National Inquiry into Sexual Harassment in Australian Workplaces carried out by the Sex Discrimination Commissioner, Kate Jenkins, in 2018-19.
A total of 55 recommendations were proposed in the Respect@Work report. The Federal Government accepted many of these recommendations; however, only a select number are sought to be implemented in the Bill.
The Bill aims to align protection from workplace harassment with current workplace health and safety laws. If enacted, it will impact the way in which sexual harassment is dealt with in the workplace and the avenues to claim relief.
Proposed amendments likely to impact on claims
The Bill proposes a number of changes that will impact claims of sexual harassment, including:
- introducing a new application for a ‘stop sexual harassment’ order which will operate side-by-side with the existing ‘stop bullying’ orders under the Fair Work Act 2009. It is currently proposed for a ‘stop sexual harassment order’ to be made in respect of conduct that is said to have occurred both before and after the commencement of the legislation;
- extending the statute of limitation from six months to 2 years after the alleged unlawful conduct occurred;
- amending section 105 of the Sex Discrimination Act 1984 (Cth) to introduce accessorial liability for sexual harassment. Currently, accessorial liability is only available for sex discrimination claims. For example, a claim could be made by an employee against an employer for the actions of a third party, such as a customer, client or supplier. To be accessorily liable, the employer would need to have been found to have ‘instructed, induced, aided or permitted’ the third party to engage in sexual harassment.
- enabling workers such as interns, volunteers and public servants at all levels of government to make a claim where previously they were excluded; and
- clarifying that victimising conduct can form the basis of a civil action for unlawful discrimination where it has previously been uncertain. Victimisation occurs when a claimant is threatened or subjected to detriment for making a claim. Penalties can accompany any findings of breach.
Implications for employers
It has never been more important for employers to consider whether their current policies, procedures, training and other measures to prevent sexual harassment are adequate.
The focus of the Respect@Work report and the Bill is to align protection from workplace harassment with current workplace health and safety laws. This means employers need to consider sexual harassment as a risk to the psychological safety and wellbeing of its staff and others.
Safework Australia has recently published guidance material for employers – the “Preventing workplace sexual harassment guide” along with guidance to prevent sexual harassment, violence, aggression and domestic violence.
Under work health and safety laws, workplaces have always had a duty to eliminate or minimise psychosocial risks in the workplace such as sexual harassment or bullying as far as is reasonably practicable. This general duty has now been sharpened to make it clear that sexual harassment is a specific form of risk. SafeWork Australia’s guidance material has been developed to help businesses meet their obligations.
The Preventing Workplace Sexual Harassment Guide helps business:
- identify the legal duties under WHS/OHS laws
- manage risks of sexual harassment
- identify hazards associated with sexual harassment and assessing risk
- control the risk of sexual harassment
Businesses can take steps to prevent sexual harassment in the workplace by:
- addressing unwanted or offensive behaviour early;
- encourage reporting of sexual harassment; and
- provide workers with information, instruction, training and supervision to support overall strategy.
The SafeWork material also provides guidance for business on how to respond to reports of sexual harassment or incidents of violence, aggression or domestic violence.
All businesses should be reviewing their codes of conduct and sexual harassment, discrimination and bullying policies. Policies will need to:
- focus on work health and safety as an outcome
- describe control measures to prevent sexual harassment relevant to the workplace
- consider the risk of third party harassment from customers, suppliers or others
- outline what a worker should do if they experience or witness sexual harassment
- encourage workers to report sexual harassment
- describe the support services available and referral information for all people, including those accused
Businesses can access the full SafeWork guidance material here:
- National guidance material for preventing workplace sexual harassment
- National guidance material for preventing workplace violence and aggression
- National guidance material for preventing workplace domestic violence
Implications for insurers
In 2018, the national survey on sexual harassment in Australian workplaces found that 39% of women and 26% of men had recently experienced sexual harassment at work. However, the survey also found that only 17% of people who believed they had been sexually harassed made a formal complaint to their employer.
Between 2019-2020, the Australian Human Rights Commission received 479 complaints under the Sex Discrimination Act, with 64% of those complaints being in the area of employment. These figures do not include claims made to state tribunals under the various state-based legislation.
The Bill effectively introduces a new type of claim for sexual harassment and extends the existing time limit during which a claim must be made. It is possible that people who have previously avoided, or been ineligible to make a claim, may now do so.
However, if the Bill is passed in its current form, it is unlikely to result in an immediate spike in claim numbers. While the Bill proposes to introduce ‘stop sexual harassment’ orders, these types of orders, like anti-bullying orders, will not include orders to pay any monetary compensation.
In the year after the stop bullying orders were introduced into the Fair Work Act, the Fair Work Commission received 694 anti-bullying applications. Since then, claim numbers in the Fair Work Commission’s anti-bullying jurisdiction have slowly increased, with 820 applications lodged in the 2019-20 year. It remains to be seen whether the ‘stop sexual harassment orders’ will follow a similar path.
There have been significant changes to sexual harassment in the workplace over the last two years. It is important for all employers, small and large, to review their codes of conduct, update policies and ensure training is regular and of a high standard to meet legal obligations and prevent conduct from occurring. Gilchrist Connell’s Workplace & Employment Practices Liability team is available to assist with policy reviews, training and claims which may arise.