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In 2023, new workplace laws came into effect which deal with sexual harassment in the workplace. The new laws provide stronger protections and increased powers for the Fair Work Commission (FWC) and support the newly introduced ‘positive duty,’ which mandates all employers to proactively take reasonable measures to eradicate sexual harassment from the workplace.
The definition of sexual harassment under the Fair Work Act and the prohibition
The definition of ‘sexual harassment’ in the Fair Work Act mirrors that of the Sex Discrimination Act 1984 (Cth) and provides that a “a person sexually harasses another person (the person harassed) if:
- the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
- engages in other unwelcome conduct of a sexual nature in relation to the person harassed
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.”
The Act outlines the prohibition, stating that “a person (the first person) must not sexually harass another person (the second person) who is:
- a worker in a business or undertaking; or
- seeking to become a worker in a particular business or undertaking; or
- a person conducting a business or undertaking
New protections against workplace sexual harassment
Under the new provisions, an aggrieved party is now able to make an application for the sexual harassment complaint to be dealt with by the FWC, which may be resolved through mediation, conciliation or other recommended means. If the consent of both parties is received, the FWC may arbitrate the dispute only after all reasonable attempts to resolve the sexual harassment dispute are exhausted.
There is some concern regarding the requirement for respondents to consent to arbitration. In cases where arbitration is not agreed upon, the complainant can proceed to court upon obtaining a certificate from the FWC. Subsequently, the court has the authority to impose penalties on the party found in violation of sexual harassment prohibitions, along with other remedies.
When parties willingly consent to arbitration, the FWC has the authority to grant compensation and remuneration for lost income. It can also issue orders mandating the respondent to undertake reasonable actions to rectify any loss or damage suffered by the complainant.
Further, the scope of protection has expanded to cover sexual harassment ‘in connection with’ work, which is much broader than the previous requirement that harassment must have occurred at work.
Employers may also face vicarious liability for sexual harassment committed by their employees, as long as the harassment can be linked to their employment. However, employers can avoid liability by demonstrating that they took all reasonable steps to prevent the occurrence of sexual harassment by their employees.
What do the new sexual harassment laws mean for workers?
The sexual harassment laws will afford workers is that in addition to orders to stop future sexual harassment, the possibility of a final determination of sexual harassment complaints now exists, including the offending party or their employer possibly being penalised and/or having to pay compensation.
How to seek help if you have experienced sexual harassment in the workplace
If you have experienced sexual harassment in the workplace and you would like to understand the legal options available to you our experienced employment lawyers in Cairns can listen to your situation and help you assess the next best steps.