New sexual harassment and sex discrimination laws
Updated: Sep 26
Written by Tanya Hibell, HR Advisor, Essential HR
Sexual harassment in the workplace is a serious issue that can have devastating effects on individuals and organisations. From 6 March 2023, new protections under the Fair Work Act took effect that prohibits sexual harassment in the workplace, or in connection with work.
These expanded protections cover workers (such as employees, contractors, work experience students, volunteers and future workers), and people conducting a business. Furthermore, the employer or business owner can now be liable if a worker commits sexual harassment, unless they can prove that they took all reasonable steps to prevent it.
In this article, we will explain the meaning of sexual harassment, your legal obligations as an employer or business owner, and what you need to do to create a safe working environment for your workers by eliminating sexual harassment and sex discrimination in your workplace.
What is Sexual Harassment?
Under the Fair Work Act, sexual harassment is defined as:
an unwelcome sexual advance or an unwelcome request for sexual favours to the person who is harassed;
other unwelcome conduct of a sexual nature in relation to the person who is harassed.
It is important to note that sexual harassment is determined by the impact of the behaviour on the person who experiences it, rather than the intention of the person who engages in the behaviour.
Therefore, even if the offender did not intend to cause harm or did not realise that their behaviour was unwelcome, if their behaviour has caused the person being harassed to feel offended, humiliated, or intimidated, it can still be considered sexual harassment.
Sexual harassment is unlawful regardless of the sex, sexual orientation, or gender identity of the parties.
Hostile Workplace Environment
A workplace environment that is “hostile on the grounds of sex” refers to a situation where an employee's gender or sex is the basis for ongoing and severe harassment, discrimination, or mistreatment that creates an intimidating, offensive, or hostile work environment. This can include unwanted sexual advances, comments or jokes of a sexual nature, physical touching, or the use of derogatory or demeaning language or gestures that are directed towards an individual because of their sex.
A hostile work environment can be created by anyone in the workplace, including supervisors, co-workers, or customers. It can have a significant impact on the victim's emotional and physical health, job satisfaction, and performance, and may also result in higher turnover rates, lower morale, and decreased productivity.
New Fair Work Commission powers
The Fair Work Commission now has greater powers to deal with workplace sexual harassment complaints and disputes through conciliation, mediation, or recommendations. If the dispute is unable to be resolved by any of these methods, the Commission may be able to deal with the dispute by arbitration.
Applications to the Commission can be made by:
a person or group of people alleging sexual harassment (such as a worker or group of workers), or
an industrial association, such as a union, on behalf of their member or members.
It is useful to note that an application can only be made if the worker is still employed within that workplace. The Fair Work Commission will not grant the application if the employee resigned and is no longer in the workplace.
Assess and minimise risks
Sexual harassment is a common and known cause of physical and psychological harm. Employers must treat the risk of sexual harassment just as they would other workplace risks by using a risk management approach to eliminate or minimise risks so far as is reasonably practicable.
Managing risks involves:
identifying how, where and when sexual harassment might happen;
assessing the likelihood that a worker may experience sexual harassment and how it may affect them (e.g. their physical or mental health);
implementing the most effective control measures to prevent sexual harassment from happening, and work out how you will address it if it does happen ;
checking that your controls are working and whether there is anything more you can do, and;
doing all of these things in consultation with your workers and health and safety representatives (HSRs) if you have them.
Legal Obligations as an Employer
A positive duty to eliminate sexual harassment and sex discrimination in the workplace means that employers have a legal and ethical obligation to take active steps to prevent and address these issues.
In addition to being a legal requirement, fulfilling a positive duty to eliminate sexual harassment and sex discrimination can benefit employers in many ways, including creating a safer and more respectful workplace, improving employee morale and retention, and enhancing the organisation's reputation and brand. It can also lead to higher employee satisfaction, increased productivity, and a more positive and inclusive work environment for all employees.
It is also important to remember that this duty will not only apply to harassment that occurs to employees at the hands of their colleagues, but also harassment from clients and customers.
What employers need to do
It is important to understand that sexual harassment can be a difficult issue to identify and that many victims may not feel comfortable coming forward with their experiences. As a result, just because there have not been any reported incidents or evidence found does not necessarily mean that sexual harassment is not happening in the workplace.
Employers should proactively take steps to prevent sexual harassment and create a culture of respect, equality, and inclusion in the workplace. This can include implementing policies that prohibit and address sexual harassment and sex discrimination, provide procedures for reporting and addressing complaints, and regularly reviewing and updating these policies and procedures. It is also important for employers to provide training and education to employees and managers on what constitutes sexual harassment and how to prevent it.
Additionally, employers should encourage open communication with their employees and create an environment where employees feel comfortable reporting incidents of sexual harassment without fear of retaliation. By taking these proactive steps, ensuring swift and appropriate action to investigate and address complaints when they arise, and holding accountable those who engage in harassing or discriminatory behaviour, employers can create a safe and welcoming workplace for all employees and prevent instances of sexual harassment from occurring in the first place.
Employers should also ensure they provide support to individuals experiencing harassment, such as an Employee Assistance Program (EAP). An EAP can be a valuable resource for employees who are experiencing harassment or other forms of distress. If your business does not currently have an EAP, it may be worth considering implementing one.
For more information and resources on how to help and prevent and address workplace sexual harassment, please visit:
How can we help?
As specialists in human resource management and industrial relations, Essential HR assists Australian businesses navigate their way through the complexities around employing people.
We deliver HR Partnering Services via an outsourced model. With a powerful combination of technology (Employment Hero) and HR/IR expertise, we deliver efficiencies, compliance, pragmatic advice, and solutions for small-medium business.
To learn more how we can assist your workplace stay up-to-date and compliant by visiting our website at: www.esshr.com.au.
This information is of general guidance only and is not legal advice. Readers are encouraged to consider this information in their own context and with independent advice.
Very informative & well-written.