When are the changes happening?
The introduced prohibition on sexual harassment from the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 has now come into force. The prohibition applies where the sexual harassment occurred, or is part of a course of conduct that commenced, on or after 6 March 2023.
Who does it apply to?
The prohibition applies to sexual harassment ‘in connection with’ work. This doesn’t exclusively apply to a worker who is sexually harassed by another worker, but also applies if the worker is sexually harassed by another person in their place of work. Examples of these ‘other’ individuals could include customers, clients or a visitor to the business.
The wording of ‘worker’ versus ‘employee’ (as the person being harassed) provides a much broader classification, allowing the prohibition to cover an individual who performs work in any capacity including, but not limited to, employees, contractors and volunteers.
This amendment contributes to the Australian Government’s commitment to fully implement the recommendations of the Respect@Work: Sexual Harassment National Inquiry Report (2020) Report and complements amendments made by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (see our article here for further information on those changes).
Resolution process
It also establishes a new dispute resolution process, allowing an applicant to apply to have the Fair Work Commission (FWC) deal with disputes through informal mediation (known as a member conference).
Following a member conference, if the FWC is satisfied that arbitration is the only reasonable path forward to resolve the dispute, the FWC must issue a certificate stating this. The FWC must also advise the parties of the reasonable prospects of success if the matter went to arbitration or proceeds to a court hearing.
If the applicant wishes to, the matter can proceed to arbitration, as long as at least one of the respondents being accused, agrees to this. If only some of the respondents consent to arbitration, the FWC will remove the individuals who do not consent from the arbitration process and it will not be binding on them.
If none of the respondents agrees to proceed with arbitration, then the applicant can either proceed to court or elect not to proceed further with the dispute.
The power to deal with a sexual harassment dispute supplements the Commission’s existing ability to make orders to stop sexual harassment, which has been available since November 2021.
Forms for workers to lodge a sexual harassment dispute claim can be found here.
Need assistance?
With these new changes, plus other changes to Anti-Discrimination laws previously introduced, businesses need to be more proactive and vigilant in combating sexual harassment and discrimination in the workplace. Failing in this obligation can increase the risk of employment non-compliance in the workplace.
Clients of ER Strategies can contact the team on 1300 55 66 37 during business hours to discuss their specific situation and how to reduce their risk, or log in to our Online HR to download a copy of our Sexual Harassment Prevention Policy and our Anti-Discrimination Policy.
If you want access to the documents or advice on these new sexual harassment changes or learn about our employee training courses on bullying and sexual harassment in the workplace, give us a call at 1300 55 66 37 or click the button below.
