R-E-S-P-E-C-T: Why should employers care about the new sexual harassment laws?

Australia’s sexual harassment regime has seen significant changes with the introduction of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect@Work Act) and the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. These Acts have introduced a raft of legislative amendments and call on employers to take action or otherwise find themselves subject to liability with severe penalties.

Both Acts work hand in hand with each other and have amended several pieces of legislation including:

  • Fair Work Act 2009
  • Sex Discrimination Act 1984
  • Australian Human Rights Commission Act 1986
  • Disability Discrimination Act 1992
  • Workplace Gender Equality Act 2012
  • Inspector-General of Intelligence and Security Act 1986
  • Racial Discrimination Act 1975
  • Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
  • Fair Work (Registered Organisations) Act 2009
  • Safety, Rehabilitation and Compensation Act 1988

As of 6 March 2023, all employers and persons conducting a business or undertaking will be subject to a positive duty to take “reasonable and proportionate measures” to eliminate unlawful sex discrimination, including sexual harassment, as far as possible.  Importantly, the prohibition relates to “workers” which not only includes employees, but also includes contractors, subcontractors, outworkers, apprentices, trainees, work experience students, and volunteers, as well as persons seeking to become a worker.  People who are eligible to make a claim also includes customers, clients and suppliers.

What does this mean for your business?

If a staff member is subjected to sexual harassment, your business can be held liable for this conduct, if you fail to show that you or the business has taken reasonable and proportionate measures to eliminate and prevent this conduct. The introduction of vicarious liability can now see employers directly responsible for non-compliance.

Employers should be aware that a key change is the ability for joint applications to be made, meaning that unions or a group of employees can make an application together.

Workers will also be able to seek orders from the FWC for compensation payments including payments for lost renumeration, and orders which require employers or relevant persons to perform acts to rectify the loss of damages suffered by the applicant.

In addition to the impacts of your business’ reputation, employers and other persons conducting a business or undertaking, need to be aware that significant penalties apply to contraventions. The amount of compensation which can be claimed by an applicant is unlimited. Additionally, from March 2023, civil penalties of up to $16,500 for individuals and $82,500 for companies can be applied.

How do I protect my business?

The yardstick for ‘reasonable and proportionate measures’ is discretionary, meaning it will vary depending on the circumstances of each business and each incident. However, as the onus now sits on employers to take action to reduce and eliminate sexual harassment and discrimination in the workplace; the Fair Work Commission is likely to give considerable weight to what resources, training and education has been provided to both workers and employers.

As such, it is essential that employers are proactively implementing measures to prevent and mitigate any occurrences of sexual harassment in their workplace.

At Chamberlains Law Firm, we recommend prioritising this responsibility and taking minimally onerous steps to protect your business from potential overly onerous penalties down the track. This includes the following:

  • Implement or update any sexual harassment policies that apply to your workplace, these policies must comply with the newly introduced obligations; and
  • Implement a compulsory training program for all employees that discusses what sexual harassment is, the implications and how to actively prevent it; and
  • Consider the implementation of a sexual harassment prevention plan, which includes a clear reporting mechanism for any allegations of sexual harassment that addresses any incidents and complaints effectively and in a timely manner.

How can Chamberlains help you?

These changes are undoubtedly significant and can be difficult for employers to navigate. To help you take the step towards active compliance with the new legal framework, we are offering employers a package to address these issues, which includes the following:

  1. Preparation of a new sexual harassment policy, or review and revamp of your existing policy;
  2. A 1-hour training session with your employees on prohibiting workplace sexual harassment; and
  3. Signage that can be displayed at your workplace about sexual harassment in the workplace.

Package cost: $990 including GST. Contact the Chamberlains Workplace Law Team for further information.

This article was prepared with the assistance of Isabella Turner.


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