From 6 March 2023 workplace sexual harassment is prohibited under the Fair Work Act 2009 (cth) (FW Act).
As part of the Secure Jobs, Better Pay legislation from 6 December 2023 (see JA Newsletter February 2023), these new provisions expand protections from sexual harassment to protect workers, future workers and people conducting a business or undertaking.
What the changes mean for employers
The FW Act was amended to prohibit (or ban) sexual harassment in connection with work, including in the workplace. From 6 March 2023 these provisions expand the previous protections around sexual harassment in the workplace.
The protection applies to:
- workers including employees, contractors, work experience students and volunteers;
- future employees;
- people conducting a business or undertaking.
The protection does not apply to sexual harassment that commenced before 6 March 2023.
A person or company can be liable for sexual harassment conducted by an employee or agent in connection with work, including if determined by the Fair Work Commission (FWC) that they were involved in the employer’s contravention. The onus is on the person or company to prove that they took all reasonable steps to prevent sexual harassment.
The FWC now has greater powers to deal with workplace sexual harassment. In addition to its existing ‘stop sexual harassment order’ powers, the FWC can deal with disputes about sexual harassment by:
- mediation, or
- making a recommendation or expressing an opinion.
Where a dispute can’t be resolved, the FWC may also be able to deal with the dispute by arbitration where the parties agree. If this occurs, the FWC can make an order:
- for compensation for lost wages;
- requiring a person to do something that’s reasonable to remedy any loss or damage suffered.
It is important that all employees, managers, and Boards understand their rights and obligations with respect to workplace sexual harassment.
Jobs Australia again recommends that employers review their organisation’s policies and procedures to ensure these documents are up to date and fit for purpose.