LAW REPORT
Sexual harassment : Changes to Australian workplace laws
Ingrid Pagura | BA , LLB
In late 2022 the Anti-Discrimination and Human Rights Legislation Amendment ( Respect at Work ) Act 2022 ( Cth ) came into force . While most of us did not take much notice at the time , we will now need to , because parts of those amendments will have a bearing on our daily life in the workplace . From 12 December 2023 major changes came into operation .
The focus on an employer and a person conducting a business ( PCBU ) shifts from managing a situation when sexual harassment has occurred to actively preventing it . They must ‘ take proactive and meaningful action to prevent ’ this from happening in their workplace . At the same time , the criteria for a finding of sex-based harassment have been lowered . The PCBU must eliminate risks and if that is not reasonably practicable then minimise these risks . Failure to do so leads to penalties .
Before we can work out how to prevent this , we need to understand what it is all about . Sexual harassment is defined as ‘ any unwelcome sexual advance , unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which make a person feel offended , humiliated or intimidated , where a reasonable person would anticipate that reaction in the circumstances ’.
Let ’ s look at some of these points .
‘ Unwelcome ’ has its usual meaning : the other person doesn ’ t want it . ‘ A reasonable person would anticipate that reaction in the circumstances ’ means that you judge , not how any particular individual reacted to the behaviour , but how a ‘ reasonable person ’ would have reacted in those circumstances . This could mean you need to anticipate the possibility that your action / s might offend , humiliate or intimidate a reasonable person . Another type of sex-based harassment is defined as unwelcome conduct based on a person ’ s gender , sex or sexuality .
Creating a hostile work environment is now also included as an offence . This applies where the ‘ work environment is offensive , intimidating or humiliating to a person because of their sex or characteristics linked to their sex ’. This places a legal focus on the workplace , not solely on any individual in the workplace . The offence may be that there are nude calendars on the wall , or a culture of banter and joking of a sexual nature . Action doesn ’ t have to be directed at anyone in particular , and it may encompass behaviour that was previously thought of as acceptable . It is deemed a sufficient cause for offence that a worker comes to the workplace and subjectively finds the environment ‘ offensive , intimidating or humiliating .’ .
Another point needs to be clarified . The harassment can be in person , by phone , by email or online , including on social media platforms and can be done out of work hours .
So , what do you need to do to ensure you are meeting your legal obligations in relation to this positive duty ?
1 . Knowledge and leadership
What has changed is that it is no longer enough for the leadership team to say , “ We have an HR department for that ”. The positive duty means that you must actively prevent this occurring in your workplace by speaking about it , having a plan to eliminate it , and dealing with complaints that arise .
All this needs to be demonstrated and recorded . For example , having records of everyone having undertaken training will help , but that isn ’ t enough . The law now requires you to have this front and centre , so if you have a regular Board meeting , sexual harassment prevention must be an agenda item . The same would apply to regular team meetings or holding regular toolbox talks .
Finally , management must be seen to be role models by walking the walk as well as talking the talk .
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