Do you know what the new sexual harassment laws in Australia are? Sexual harassment has a long history in Australian workplaces, and countless individuals have suffered the harmful and often long-lasting effects of this form of harassment. However, recent changes to the law in Australia are set to make significant advancements in preventing and addressing sexual harassment. These new laws aim to provide greater protection for workers and make employers accountable for any instances of sexual harassment that occur within their workplaces.
In this article, we’ll explain what the new sexual harassment laws in Australia are, what workplace sexual harassment is, the purpose of the legislative changes to sexual harassment , when the laws begin to apply, and we answer other frequently asked questions relating to the new changes.
What is Sexual Harassment?
According to Safe Work Australia, sexual harassment refers to unwanted sexual behaviour that makes an individual feel intimidated, humiliated or offended when such reactions are reasonable. There are a number of actions that can be considered sexual harassment. These include the following:
- Kissing that isn’t welcome
- Other forms of inappropriate physical contact that aren’t welcome
- Leering
- Making calls that are sexually explicit
- Questions concerning your personal life or appearance that are intrusive
- If someone is asked to go on dates and these requests are not wanted
- Sexual requests
- Sending emails that are sexually explicit
- Staring
- Sending text messages that are sexually explicit
- Sexually explicit online interactions
- Hugs that aren’t welcome
It’s important to note that these types of actions don’t have to be directly aimed at you. This is because sexual harassment can involve conduct that makes your working environment hostile or unpleasant in a sexually inappropriate manner. This can include a working environment where sexually inappropriate pictures are shared or a culture where sexually suggestive jokes or comments are made.
Get a free legal document when you sign up to Lawpath
Sign up for one of our legal plans or get started for free today.
What are the new sexual harassment laws in Australia?
The new law that’s being introduced is that the Fair Work Act 2009, will now ban sexual harassment associated with work, and this includes workplace sexual harassment. Furthermore, the new laws create a positive duty for employers to prevent sexual harassment in the workplace.
The legal changes will allow workers who have faced sexual harassment, the Australian Government’s Fair Work Ombudsman(FWO) and unions to seek compensation, financial penalties and other orders against individuals who are sexually harassing people and businesses that fail to take reasonable measures to protect their workers from sexual harassment.
What is the purpose of the legislative changes to sexual harassment?
The primary purpose of the new laws is to provide greater protection to workers from facing sexual harassment. The new laws aim to tackle the widespread problem of sexual harassment by implementing measures that hold both employers and harassers accountable for their actions.
The new laws are in response to the Australian Human Rights Commission 2020 Respect@Work National Inquiry into Sexual Harassment in Australian Workplaces report’s recommendation 28, and the report stating that sexual harassment is a prevalent issue that’s insufficiently addressed by existing legislation. This recommendation stated that the Fair Work system should be evaluated to make sure and establish that sexual harassment, as defined in the Sex Discrimination Act 1984, is clearly banned.
Section 28A of the Sex Discrimination Act states that sexual harassment occurs when an individual makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the individual who is being harassed or if an individual engages in other unwelcome conduct of a sexual nature in relation to the person harassed.
The purpose of the new laws is to enhance rather than replace the existing laws that ban sexual harassment that are contained in the Sex Discrimination Act or equivalent legislation at the state or territory level. This enhancement is achieved by offering an alternate method for individuals who claim to have been subjected to sexual harassment in the course of their employment workplace to take action against such harassment.
It’s important to note that workers will have the option to pursue legal action pursuant to the new laws or based on the existing laws under the Sex Discrimination Act or legislation at the state and territory level.
Furthermore, the new laws provide unions with the ability to create claims on behalf of an individual who has stated they have faced sexual harassment and the FWO also has the ability to commence proceedings on behalf of the individual in the event that the new laws have been breached.
The Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report also stated that current legislation doesn’t encourage employers to create workplaces that are free from harassment and that the individual who has faced harassment is almost exclusively responsible for addressing harassment they have faced.
The report stated that as a result of existing laws, a large number of individuals who face sexual harassment choose not to take action due to the burdensome process. Therefore, one of the objectives of the new laws is to reduce the burden faced by individuals in relation to addressing the sexual harassment they have faced by allowing other parties to act on their behalf.
When do the laws prohibiting sexual harassment begin to apply?
These changes to sexual harassment laws in Australia will go into effect on 6 March 2023. As a worker or employer, you should be aware that this legislative change doesn’t apply to sexual harassment a worker has faced prior to the legislation taking effect on the 6th of March or sexual harassment that’s in connection with actions taken prior to the new laws taking effect regardless of whether the sexual harassment continues after the new laws begin to apply.
Workers who have faced sexual harassment prior to the commencement date of the new legislation will be required to make a claim in accordance with existing legislation, including the stop sexual harassment order provisions of the Fair Work Act that were in effect before the new legislation came into effect.
Who do the new laws prohibiting sexual harassment apply to?
These new laws apply to everyone, including business clients, undertaking clients, or customers. Furthermore, you should be aware that employers or companies will also be held liable for sexual harassment committed by an agent or employee through their employment. Employers and companies can avoid liability if they’re able to demonstrate that every reasonable measure was taken to prevent sexual harassment from occurring.
Who will be protected by the new sexual harassment laws?
The new sexual harassment laws in Australia will provide protection for the following:
- Workers, this includes volunteers, employees, contractors and students undertaking work experience
- Any individual that’s undertaking or running a business
- Future workers
Frequently Asked Questions(FAQs)
What happens if there is a breach of the new laws prohibiting sexual harassment?
The Fair Work Ombudsman is provided with a right to commence legal action when there have been alleged breaches of the new law.
What can an individual do if they experience workplace sexual harassment?
Workers who believe that they have been subjected to sexual harassment in relation to their employment, either prior to or since the 6th of March 2023, still retain the right to create a ‘stop sexual harassment’ application to the Fair Work Commission. These applications are made available pursuant to section 789FC of the Fair Work Act.
Furthermore, individuals who have faced sexual harassment in relation to their employment in (or an industrial association entitled to represent them) will have the option to initiate civil proceedings in the event that the Fair Work Commission is unable to resolve their dispute.
What can you do as an employer to protect your employees from workplace sexual harassment?
As an employer, you can take the following steps to protect your employees from workplace sexual harassment:
- You can create and implement a detailed sexual harassment policy that defines sexual harassment, specifies what conduct is prohibited and outlines the complaint process
- You can provide your employees with education about sexual harassment, the company’s policies and procedures, and what employees can do if they experience or witness sexual harassment
- You should encourage open communication and create an environment where employees feel comfortable reporting incidents of sexual harassment, and ensure that any complaints are taken seriously and handled promptly
- You should promptly and effectively respond to complaints by taking immediate action by investigating any complaints of sexual harassment and taking appropriate steps to address and prevent further incidents
When can workplace sexual harassment occur?
Workplace sexual harassment can occur in the following situations:
- Within regular working hours
- At work-related activities such as training courses
- During work-related conferences
- During work trips
- During social activities related to work
Conclusion
In conclusion, the new sexual harassment laws in Australia, which come into effect on 6 March 2023, prohibit sexual harassment associated with work and create a positive duty for employers to prevent sexual harassment in the workplace. The new laws enhance the existing laws that ban sexual harassment by offering an alternate method for individuals who claim to have been subjected to sexual harassment in the course of their employment.
As an employer, if you’re still feeling unsure about the new sexual harassment laws in Australia, you should hire a lawyer for legal advice to avoid legal consequences such as being found vicariously liable for the actions of your workers.
Alternatively, if you’re a worker and you’re still feeling unsure about the new laws you should also speak to a lawyer to make sure you understand your rights and the various methods you can use to take legal action if you face sexual harassment.
Get a fixed-fee quote from Australia's largest lawyer marketplace.
