As Australia continues to evolve its legal framework to protect workers, the 2023 updates to sexual harassment laws mark a significant stride toward safer, more inclusive workplaces. This guide delves into the legislation, highlighting the advancements and implications of these legal updates.
Understanding the legal framework
Sexual harassment in the workplace is governed by the Sex Discrimination Act 1984, which is designed to prevent discrimination on the basis of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy. The 2023 updates build upon this foundational legislation, aiming to address gaps and enhance protections.
Australian law defines workplace sexual harassment according to two key elements:
1. Unwelcome conduct
The conduct must be unwelcome to the recipient. This means it's unwanted, offensive, humiliating or intimidating. The perpetrator's intention behind the behaviour is irrelevant.
Examples can include:
An unwelcome sexual advance such as physical contact, touching or gestures.
Suggestive comments, jokes, or remarks.
Showing or sending sexually explicit images or materials.
Unwanted invitations or pressure for sexual favours or activity.
Other unwelcome conduct like spreading sexual rumours or creating a hostile work environment.
2. Sexual nature
Unlike other types of workplace harassment or bullying, the conduct must be of a sexual nature. This means it refers to or targets someone's sex, sexuality, or body in a sexual way.
While the conduct doesn't have to be explicitly sexual, it creates a sexualised environment or violates someone's boundaries based on their sex or sexuality.
The 2023 sexual harassment legislation updates: A closer look
The major updates to sexual harassment laws in Australia for 2023 involved various key changes:
Enhanced definitions and protections
The updates offer more comprehensive definitions of sexual harassment in the workplace, as informed by recent case law and recommendations from legal experts. This clarity helps victims understand their rights and how to seek recourse.
Extended scope of protection
Reflecting recommendations from the Respect@Work: Sexual Harassment National Inquiry Report (2020), the legislation now offers broader protections.
The Fair Work Act now prohibits sexual harassment associated with work, even if it doesn't occur directly in the workplace. It also covers contractors and volunteers, ensuring that all workplace participants are protected.
Increased employer accountability
Under the Fair Work Act 2009, the updates mandate employers to take proactive steps in preventing and addressing sexual harassment, sex discrimination and victimisation in the workplace. This is known as the "positive duty."
The Australian Human Rights Commission gained new powers to investigate and enforce compliance with this positive duty starting in December 2023. Failure to comply can result in significant penalties, reinforcing the importance of a zero-tolerance approach.
Support mechanisms for victims
The legislation strengthens the support for victims, incorporating provisions for confidential reporting and access to counselling, aligning with the National Employment Standards (NES) to ensure mental health and well-being are prioritised.
Navigating the changes: Employers and employees
Australia's 2023 reforms to sexual harassment legislation significantly impact both employers and employees. Understanding these changes is crucial for creating safer, more respectful workplaces. Here is what you need to know.
For employers
Employers are urged to review their sexual harassment policies and training programs to ensure they align with the updated legislation. Implementing a clear, accessible reporting process and developing a culture of respect is now more critical than ever.
Proactive prevention is paramount: The ‘positive duty’ mandates proactive measures to prevent workplace sexual harassment, sex discrimination and victimisation. Invest in training, clear policies and complaint mechanisms, which should be set out in your employee handbook.
Expand your reach: The law now protects workers, even if harassment occurs outside the physical workplace. Review policies and training to encompass broader work-related interactions.
Stay informed: Regularly consult the Fair Work Ombudsman and Respect@Work websites for updates, resources, and guidance on sexual harassment best practices.
Seek legal advice: For complex situations or compliance concerns, consider consulting HR and employment law experts.
For employees
Employees should familiarise themselves with their rights and the support available to them. Understanding how to report incidents of sexual harassment and accessing support services is crucial in advocating for oneself and others.
Know your rights: Understand the expanded protections and your options for reporting sexual harassment. The Fair Work Commission and independent complaint bodies can support you.
Speak up promptly: Early reporting is critical for investigations and preventing further harm. Utilise established reporting channels within your organisation or external avenues.
Seek support: Resources like counselling, legal advice and employee advocacy groups can provide guidance and empower you throughout the process.
Stay informed: Educate yourself about the sexual harassment reforms and your rights through government websites, employee assistance programs or trusted organisations.
Legal precedents and references
The 2024 updates draw upon key legal precedents that have shaped the understanding of sexual harassment in Australia. Cases such as Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 highlight the evolving legal standards and the judiciary's stance on workplace harassment.
In this case, Ms. Richardson sued her employer, Oracle, for sexual harassment by a coworker, Mr. Tucker. The lower court found Oracle vicariously liable but awarded Ms. Richardson $18,000 in damages, which she appealed. The Full Federal Court overturned the initial award, deeming it ‘manifestly inadequate.’ They increased the damages to $130,000, acknowledging the impact of sexual harassment on victims and acknowledging evolving societal values.
Ms. Richardson also claimed economic loss due to her resignation, which the lower court denied. The appeal court upheld her claim, awarding $30,000 for reduced salary over three years. Notably, the court awarded damages for the negative impact on Ms. Richardson's intimate relationship caused by the harassment, recognising the broader personal consequences.
Why it matters
This case set a precedent for higher damages awards in sexual harassment cases, reflecting the seriousness of the offence. It acknowledged the broader impact of harassment, including economic loss and personal relationships. While not directly applicable to the case, it serves as a reminder of the employer's positive duty to prevent harassment, now explicitly mandated by law in Australia.
Seeking legal advice?
The 2023 updates to Australia's workplace sexual harassment laws represent a comprehensive effort to create safer workplaces for all Australians. By grounding these updates in a solid legal framework and ensuring they are informed by past precedents and expert recommendations, Australia continues to lead in the fight against workplace harassment.
If you're navigating the complexities of the updated sexual harassment laws, consulting with a legal expert who specialises in employment law can offer clarity and guidance. Whether you're an employer updating your workplace policies or an employee seeking to understand your rights, professional advice can ensure you're informed and prepared.
Frequently Asked Questions
Q: How should small businesses adapt to the 2023 legislation?
Q: What is considered sexual harassment in the workplace in Australia?
Q: What should I do if I experience sexual harassment at work?
Q: What if I'm afraid to report workplace sexual harassment?
Q: What happens if an employee reports sexual harassment in my workplace?
Q: What are the legal consequences of failing to prevent sexual harassment in the workplace?
Q: Can employees be trained to prevent sexual harassment?
Q: What support is available for victims of sexual harassment under the new laws?
Q: I witnessed sexual harassment. What should I do?
You can call out the behaviour if you feel safe and comfortable. Check-in with the person experiencing the harassment and offer your support. You have a responsibility to report what you witnessed, either directly to your manager or HR, through anonymous reporting channels or to external bodies. Document what you witnessed, including details like the date, time, location, what happened, and who was involved.
Witnessing harassment can be emotionally draining. It's important to seek support from friends, family, colleagues, or professional helplines if needed.
Q: What's the difference between sexual harassment and sexual assault?
Q: What is the Sex Discrimination Act?
The Sex Discrimination Act prohibits direct discrimination, indirect discrimination, sexual harassment, and victimisation.
