Secure Jobs, Better Pay: Further changes relating to sexual harassment

Following a host of recent legislative changes relating to workplace sexual harassment introduced in the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect@Work Act), the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Secure Jobs Act) contains yet further changes to this important area of law, including a range of other significant changes to the Fair Work Act 2009 (Cth) (Fair Work Act).

Below, we set out the key changes to the Fair Work Act relating to workplace sexual harassment and what your organisation needs to know. These changes under the Secure Jobs Act will commence on 6 March 2023, giving organisations under three months to get on top of the changes.

Prohibition on sexual harassment in connection with work in the Fair Work Act

The Secure Jobs Act inserts new provisions in the Fair Work Act (under a new Part 3-5A) which make it unlawful for a person (the first person) to sexually harass another person (the second person) where the other person is:

• a worker in a business or undertaking
• a person seeking to become a worker in a particular business or undertaking (i.e. prospective workers); or
• a person conducting a business or undertaking (PCBU); and

the harassment occurs in connection with the second person being:

• a worker in a business or undertaking
• a person seeking to become a worker in a particular business or undertaking; or
• a PCBU

The scope of the new prohibition is broad because it encompasses "workers", as defined by the Work Health and Safety Act 2011, which means an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience, or a volunteer.

It also specifically applies to prospective workers and PCBUs and would, in some circumstances, enable principals to be vicariously liable for acts of their employees or agents.

Options for those who have been sexually harassed in connection with work under the Fair Work Act

The Secure Jobs Act changes give persons who have been sexually harassed in connection with work a number of options for redress.

Specifically, where a person alleges they have been sexually harassed in connection with work under the new provisions, they, or an industrial association, may apply to the Fair Work Commission (FWC) to:

• make a "stop sexual harassment order" under the existing provisions of the Fair Work Act; or
• otherwise deal with the dispute under a new dispute resolution framework, modelled on the existing dispute resolution mechanism for general protections dismissal disputes under the Fair Work Act.

A person aggrieved by sexual harassment at work may seek that the FWC deal with the dispute via a mediation or conciliation conference. If this does not successfully resolve the dispute, the parties could proceed to consent arbitration or make an application to a Federal Court. However, much like general protections disputes, the FWC will be required to issue a certificate stating the matter is unable to be resolved at mediation or conciliation before a person can initiate civil proceedings in court in relation to the sexual harassment at work.

Other amendments introduced by the new Part 3-5A in the Fair Work Act

Other changes in the new Part 3-5A of the Fair Work Act include the following:

• a vicarious liability provision modelled on the Sex Discrimination Act 1984 (Cth) (SD Act) which makes a person liable for acts of their employee or agent
• the ability to make joint applications ─ the new provisions would provide flexibility for applications to be made jointly by individuals against one or more perpetrators, and would enable industrial associations to represent one or more individuals
• a time limit of 24 months after the contravention (or last contravention) to bring an application for the FWC to deal with a sexual harassment dispute. This is consistent with time limits that apply to complaints relating to the SD Act.

What do these changes to the Fair Work Act mean for your organisation?

The changes relating to sexual harassment under the Secure Jobs Act again expand the obligations of organisations in relation to workplace sexual harassment.

In particular, the new prohibition requires PCBUs to protect a broad range of persons, including workers and prospective workers, from sexual harassment in connection with work. This will require your organisation to understand the factors and exposure points in the organisation that increase the risk of sexual harassment in the workplace, and to take reasonable steps to address those risks. This would include, among other steps:

• conducting a risk assessment to identify where sexual harassment is most likely to occur
• ensuring the existence of adequate policies that make it clear that sexual harassment is prohibited
• conducting regular and targeted training on expected standards of behaviour
• having a robust complaints and investigations framework

For more information on what actions your organisation should take to ensure compliance with its legal obligations relating to workplace sexual harassment, please see our guide.

Respect@Work changes to the Sex Discrimination Act

It should be noted that the Respect@Work Act amended the SD Act to include a new positive duty to eliminate sexual harassment. The positive duty places an onus on employers and PCBUs to take "reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, victimisation and hostile work environments as far as possible".

The new positive duty will even extend to conduct by third parties, such as customers or clients to the workers of a PCBU. The provisions in the Secure Jobs Act in relation to sexual harassment at work do not extend this far.

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