ICYMI: Employers now have a positive duty to prevent sexual harassment at work. But what does this mean exactly?

All employers are now required to take proactive steps to prevent sexual harassment in the workplace before it arises. It is no longer acceptable for employers to take a reactive approach to complaints of this nature. No matter the size of your business, you should be regularly assessing whether you are meeting your obligations.

The threshold for a finding of harassment has also been lowered. No longer ‘seriously demeaning’, the conduct need only be unwelcome and of a demeaning nature (s 28AA of the Sex Discrimination Act). Again, as in many other pieces of modern legislation, we see the reasonable person test being applied when determining if such conduct meets the definition of harassment.

Section 28M or the Sex Discrimination Act also provides that it is unlawful for one person to subject another person to a hostile work environment. You must prevent conduct that may result in an ‘offensive, intimidating or humiliating workplace environment by reasons of sex, even where conduct is not directed toward a specific person’.

Firstly, it’s important for you to know who could be liable:

• Perpetrator (Crimes Act)
• Person “involved” (Sexual Discrimination Act)
• Employer (Sexual Discrimination Act, Fair Work Act)

That’s right. As the employer, you are considered vicariously liable unless you took reasonable steps to eliminate or minimise risks.

If that’s given you an “oh s**t!” moment, then you should also know that there are multiple avenues for such a complaint could be raised:

• Australian Human Rights Commission
• Fair Work Commission
• State based Human Rights Commissions
• Civil and Administrative Tribunals
• Federal and Family Courts
• WHS/OHS Regulators

The AHRC has powers to conduct inquiries into compliance with positive duty and systemic unlawful discrimination, enable unions to progress a complaint through to federal court, give compliance notices, and publish guidelines, recommendation and research.

The Fair Work Commission has the power to make a ‘stop sexual harassment order’, arbitrate sexual harassment disputes by consent and make orders for compensation (no limits).

Finally, under work health and safety legislation, risks arising from sexual harassment are also considered to be a psychosocial risk, providing further obligations on employers and PCBUs to ensure that they have adequately and proactively managed the risk.

Here are some ideas of what you can do:

• Conduct sexual harassment training with all employees on a no less than annual basis, making sure you keep attendee records.
• Review your policies to ensure that they are up to date with the legislation; if you need a generic template, we can provide you with one.
• If you are a board member, you are expected to be up to date with your due diligence training in relation to the company’s WHS responsibilities.
• Ensure your workplaces are free from offensive materials or images and put a lid on sexualised banter and jokes. Check your crib rooms, locker rooms, smoko areas and facilities.
• Review your risk assessment framework to ensure that you have considered these new risks and obligations and complied with due diligence.
• Keep and monitor reports on trends, providing avenues for proactive steps to be taken in a timely manner.