Main Content

Law Talk: positive employer obligations around sexual harassment at work

Law Talk: positive employer obligations around sexual harassment at work

The face of the workplace is changing. Recently, we have seen the #metoo movement, the Brittany Higgins allegations and the Respect@Work Sexual Harassment National Inquiry Report, released in 2020. There has been greater public discussion about psychosocial risks at work such as bullying, discrimination and harassment, and a greater emphasis on worker mental health post-pandemic.

These changes have meant significant legislative developments aimed at preventing psychosocial hazards at work as far as reasonably practicable. Recent developments include:

Duty of care under the Commonweath Fair Work Act

  • Prohibition against sexual harassment in connection with work, and provision of civil penalties for past harassment.
  • The Fair Work Commission has powers to make orders to stop future sexual harassment at work.

Duty of care under the Commonwealth Sex Discrimination Act

  • Prohibition against “hostile work environments” on the grounds of sex.
  • Employers to take reasonable and proportionate steps to eliminate sex discrimination, sexual harassment and victimisation as far as possible, complementing existing provisions that mean an employer may be liable for the conduct of an employee if they did not take all reasonable steps to prevent the conduct.

Duty of care under the Commonwealth Sex Discrimination Act

  • Retaliatory action, or the threat of such action, against victims of sexual harassment or bystanders such as witnesses, can now form the basis of an action in discrimination, in addition to criminal prosecution.
  • Changes to the objects of the Sex Discrimination Act to state that it seeks to achieve substantive equality between men and women.

These exist alongside existing discrimination and sexual harassment protections under the Victorian Equal Opportunity Act, and includes a duty to take reasonable and proportionate measures to prevent discrimination, harassment and victimisation

How these reforms will play out in the real world remains to be seen. There may be a role for all of us to play in this. They accompany other significant reforms such as the changes to flexible work arrangements outlined in the July 2023 issue of The Handover members magazine, to reforms relating to job security, to the work value case, and more to come.

The Independent Review into Parliamentary Workplaces has identified three minimum steps that employers can take to prevent inappropriate behaviours at work:

  • Strengthen leadership to prioritise a safe and respectful culture
  • Increase diversity, equality and inclusion
  • Clear and consistent psychosocial risk standards, reporting and accountability

There may be actions you yourself can take, from small actions to larger ones in the workplace. We encourage you to find a space to contribute. Speak up. Get involved.