Effective 6 March 2023:
Businesses will also need to amend their employment policies and procedures to reflect the additional sexual harassment and sex-discrimination law reforms.
Together, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act) and the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect@Work Act) shepherded in significant changes to a business’ obligations to eliminate work-related sexual harassment and introduced new avenues for individuals who have been sexually harassed at work to obtain legal redress.
As part of those changes, from 6 March 2023:
From 6 March 2023, there will be a new additional express prohibition on sexual harassment in connection with work introduced into the FW Act. The prohibition will apply to all workers and prospective workers (including employees, contractors, apprentices, trainees, students and volunteers) and includes sexual harassment perpetrated by third parties in the workplace (such as clients or customers).
Under the changes, an employer may also be held vicariously liable under the FW Act for sexual harassment conducted by an employee or agent, unless it can establish that it took all reasonable steps to prevent the employee or agent from engaging in the sexual harassment.
Additionally, from 6 March 2023, the FWC will receive new powers to hear and resolve sexual harassment applications based on a dispute resolution framework modelled on the current FWC process for resolving general protections disputes.
The reforms introduced on 6 March 2023 place an employer’s obligations in relation to sexual harassment squarely within the core piece of Australian workplace legislation, the FW Act.
At a Federal level, sexual harassment in connection with work has been prohibited by the Sex Discrimination Act 1984 (Cth) (SD Act) and those prohibitions continue to apply. The new sexual harassment provisions in the FW Act largely replicate the existing provisions in the SD Act, adopting the SD Act definition of sexual harassment and mirroring its provisions regarding employer vicarious liability.
An individual wishing to pursue a claim in relation to sexual harassment under the SD Act is generally required to lodge a complaint with the Australian Human Rights Commission (AHRC) and engage in a conciliation process. If the complaint is not resolved by the conciliation process, the individual can elect to pursue the matter in the Federal courts. Individuals wishing to pursue a claim in relation to sexual harassment may also have the option of pursuing their matter under State-based anti-discrimination legislation and associated State-based dispute resolution frameworks.
From 6 March 2023, individuals who have experienced sexual harassment at work will have the option of pursuing a claim either under the SD Act via the AHRC dispute resolution process, or under the FW Act through the new FWC dispute resolution process.
Who can make an application?
Under the new FWC dispute resolution process, a sexual harassment application can be made by either:
The FWC can allow joint applications by two or more aggrieved persons or industrial associations, and for a single industrial association to represent multiple aggrieved persons. Arguably, this opens the door for sexual harassment ‘class actions’ brought by unions.
When making a sexual harassment application, an aggrieved person or industrial association will have the option of requesting that the FWC make a stop sexual harassment order and/or otherwise deal with the dispute.
What timeframes need to be compiled with?
The timeframe for making a sexual harassment-related application to the FWC is
24 months from the date of the contravention, or the last of the contraventions. This is consistent with the time limits for bringing a sexual harassment claim under the SD Act.
If an aggrieved person makes an application more than 24 months after the harassment took place, the FWC will have the discretion to dismiss the application. It remains to be seen how the FWC will exercise this discretion and whether it will apply the same stringent rules it generally applies to the time restrictions for general protections and unfair dismissal applications or adopt the generally less stringent approach that has been taken by the AHRC.
What is the process for resolving an application in the Fair Work Commision?
The FWC dispute resolution framework for sexual harassment applications is modelled on the existing process for resolving general protections disputes.
Generally, sexual harassment applications must be dealt with by a private and confidential mediation or conciliation. If the matter does not resolve at this stage, and the FWC is satisfied that all reasonable attempts have been made to resolve the dispute, the FWC must issue a certificate to the parties confirming this view.
Once a certificate has been issued, an aggrieved person can elect to pursue their claim in the Federal courts (and will have 60 days to do so from the date on which the certificate is issued by the FWC), or the parties can, by consent, proceed to an arbitration in the FWC. If the matter proceeds to arbitration before the FWC, the FWC can make orders, including for the payment of uncapped compensation.
The process for dealing with an application seeking a stop sexual harassment order only is different. In those cases, the FWC must start to deal with the application within 14 days and will determine the process for dealing with the application, which can include requiring a person to attend before the FWC, taking evidence and submissions, conducting a conference, or holding a hearing. The FWC can also make orders it considers appropriate to stop the person from being sexually harassed, however, it cannot make an order requiring a monetary payment.
The Secure Jobs, Better Pay Act provides that a person cannot pursue multiple remedies for the same alleged sexual harassment under the FW Act and other anti-discrimination laws. However, a person who makes an application to the FWC for a stop sexual harassment order only is not prevented from subsequently pursuing a remedy for sexual harassment under anti-discrimination law.
Additionally, the new provisions do not exclude or limit the operation of state or territory anti-discrimination laws that are capable of operating concurrently with the new provisions.
Respect@Work Act and the Positive duty
One of the most significant changes introduced by the new workplace laws is that employers or any person conducting a business or undertaking (PCBU), now have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible:
The positive duty came into effect on 12 December 2022 and marks a significant shift in the way employers and PCBUs are required by law to approach sexual harassment and sex discrimination. Employers and PCBUs must take proactive and considered steps to seek to eliminate sexual harassment and other sex-based discrimination in their workplaces.
From December 2023, the AHRC will be given new compliance powers to enable it to monitor, assess, and enforce compliance with the positive duty.
The New protected attributes
The Secure Jobs, Better Pay Act also inserted three new protected attributes into the FW Act: breastfeeding; gender identity; and intersex status. From 7 December 2022, the protections against adverse action in the FW Act apply to employees and prospective employees who possess these attributes.
The reforms introduced by the Respect@Work Act and the Secure Jobs, Better Pay Act mean that employers and PCBUs need to be proactive in seeking to eliminate sexual harassment and other sex-based discrimination in their workplaces. Some measures which will assist to discharge the positive duty and help limit the risk of vicarious liability under either the FW Act or the SD Act will include:
If you have questions or would like more specific information about how the changes will affect you or your business, please call 1800 867 113, or to organise a confidential discussion at a time that suits you, please click here.
Stephen Schoninger is a Partner and leads the employment and workplace law practice at Avant Law, based in Sydney. Stephen has over 18 years’ experience practising exclusively in employment, industrial relations and discrimination laws. Stephen is called on for his ability to plainly advise on and pragmatically apply legal principles to manage and resolve complex issues arising in the workplace. Stephen advises employers and employees in the private and public sectors on all areas of workplace law and is an experienced litigator of work-related claims. Stephen also conducts workplace investigations and delivers workplace compliance training. He regularly presents seminars on topical employment and workplace law issues.
Savanna Russo is an Associate in the employment and workplace law practice at
Avant Law, based in Sydney. Savanna has experience advising both employer and employee clients on all areas of employment law. She has particular experience advising small to medium businesses in a wide range of industries including allied health, banking and finance, professional services and construction. Savanna provides practical, solutions-focused advice and is known for her professional and empathetic approach.
Disclaimer: The information in this article does not constitute legal advice or other professional advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of this content. The information in this article is current to 24 February 2023. Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law Pty Limited are members of the scheme. © Avant Mutual Group Limited 2023
Stephen Schoninger
Partner
Head of Employment & Workplace
0407 947 998
Savanna Russo
Associate
Employment & Workplace
0487 749 122
Secure Jobs, Better Pay Workplace reforms become law
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Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law Pty Limited are members of the scheme.
