As of 10 September 2021, some legislative changes were enacted in response to the Australian Human Rights Commission’s (the Commission), Respect@Work Report. The report detailed the Commissions inquiry into sexual harassment in Australian workplaces. The overarching aim of these changes was to provide a clear and comprehensive path forward to prevent and address sexual harassment within the workplace. These changes have been enacted via the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect at Work amendments) and the Fair work Act 2009 (Cth) (the FW Act).
Stop sexual harassment orders
The Respect at Work amendments now provide the Fair Work Commission (FWC) the ability to make orders to stop sexual harassment at work. Currently the FW Act provides the FWC with the right to deal with orders to stop bullying at work, however the amendments expand the FWC powers to do the same in relation to sexual harassment claims. Applications for stop sexual harassment orders can be made to the FWC from 11 November 2021.
Valid reason for dismissal
While sexual harassment has always been considered by the Australian courts and commission as a valid reason for dismissal, the definition of serious misconduct under the FW Act has been expanded to include sexual harassment, making it clear that this will be considered a valid reason for dismissal. Under the FW Act, serious misconduct can result in dismissal without notice. However, this does not replace the employers obligation to conduct fair and reasonable practices when considering the dismissal of an employee.
Accessorial liability for sexual harassment
The Respect at Work amendments have also introduced accessorial liability provisions. These changes are an important consideration, as personal liability can result from ‘turning a blind eye’ to sexual harassment, or to sex-based harassment.
Implications on employers
In light of these amendments now is the time for all employers to take steps to take review practices, procedures, training and workplace policies to ensure adequate provision to deal with instances of sexual harassment, and or employee grievances. Ensure employees are aware of what is appropriate and inappropriate behaviour and what action should be taken should they need to report inappropriate behaviour.
For more information about these changes or how to manage sexual harassment in your workplace, please reach out to the Master Builders Workplace Relations and Legal Team on (02) 6175 5900 for further assistance.