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What do the Changes to Sexual Harassment in the Fair Work Act Mean For Employers?

Published October 13, 2021 -
employees in workplace without sexual harassment

Between 2013 and 2018, the Australian Human Rights Commission (AHRC) conducted four surveys on the workplace experience of sexual harassment. The surveys showed a significant increase in the experience of sexual harassment in the workplace, with almost two in five women and one in four men experiencing sexual harassment in the workplace in the previous five years. (The AHRC reported in September 2018). For an Employer, it’s important to consider the reputational damage this topic can have on a business. It is crucial to be prepared and ensure your employees know that bullying or harassment are not tolerated in your workplace, and what they can do if they do ever feel they need to raise a complaint.

How Do Employers Recognise Harassment And What Should Business Owners Managers And Staff Be Aware Of? 

Sexual harassment is defined as ‘unwelcome conduct, remarks or innuendo of a sexual nature or any other sexual behaviour which occurs at work, at work events, between individuals at work and between colleagues outside of work. A few examples could include unwelcome touching, jokes, or comments of a sexual nature, sending explicit text, or emails, displaying pictures of a sexual nature, or not addressing someone by their preferred pronouns.

The harassment can take place in any setting, such as employees using social media to conduct the unwelcome conduct, innuendo, etc. What may be considered ok in a group of friends that don’t work together, may be considered very differently in a workplace environment.

The cost to a small or medium-size business can be extensive. If an employee decides to bring a claim to court, the Employer can be held vicariously liable for acts of sexual harassment by their employees. It should be remembered there is no upper limit cap on compensation that can be awarded to the employee. This does not include the cost of long-term reputational and cultural damage that can occur from a court case.

On 10 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect at Work amendments) took effect. The Respect at Work amendments update the Fair Work Act 2009 (FW Act) to address sexual harassment at work and include miscarriage as a reason to access compassionate leave.

What are the Changes Brought About by the Bill?

Eligible workers will be able to make applications to the Fair Work Commission (FWC) from 11 November 2021 for an order to stop the sexual harassment. Where an order is has been made by the FWC, failure to comply with the order can see substantial penalties imposed by a court.

A definition has been introduced into the Fair Work Act (the Act) defining sexual harassment and specifies that sexual harassment at work is a form of serious misconduct and can be a valid reason for dismissal under the Act.

The Respect at Work Amendments extended compassionate leave to include miscarriage. Employees can take up to two days of paid compassionate leave (unpaid for casuals) if they or their current spouse or de facto partner has a miscarriage.

What Should Employers Do And What Does It Mean For Their Business? 

Employers need to have a full awareness of the changes and a real understanding of the definition of sexual harassment. Employers should be training employees in what is appropriate behaviour in the workplace, and pinpointing what bullying, harassment and sexual harassment means. Employers should consider partnering with Employsure as we are the experts in our field and can provide clear advice and guidance from our experienced advisers and up-to-date on-site training for employees and managers through our Face 2 Face service.

Want to Know More About Employsure Face2Face?

Employsure Face2Face can help Employsure clients manage difficult employee conversations, such as those regarding redundancy, terminations, and bullying and harassment.

About Employsure

Employsure is one of Australia’s largest workplace relations advisers to small- and medium-businesses, with over 30,000 clients in ANZ. We take the complexity out of workplace legislation to help small business employers protect their business and their people.

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