KEY TAKE OUTS
- On 6 March 2023, changes to the Fair Work Act 2009 (Cth) (FW Act) took effect to prohibit sexual harassment in connection with work.
- The Fair Work Commission’s (FWC) new powers will deal with sexual harassment disputes to the same effect as dismissal disputes.
- Contravention of this new prohibition will attract a civil penalty (up to $82,500 for body cooperate employers).
As of 6 March 2023, the Fair Work Commission is empowered to manage sexual harassment disputes as they manage and operate dismissal disputes. Under Part 3-5A, an employer or principal is vicariously liable for unlawful sexual harassment perpetrated by its employees or agents. Contravention of this new prohibition will attract a civil penalty (up to $82,500 for body cooperate employers).
The prohibition of sexual harassment in the workplace now extends to any individual who performs work in any capacity including contractors, subcontractors, apprentices, trainees, volunteers or prospective workers.
An employer/principal is not liable if they prove that they took all reasonable steps to prevent the employee or agent from doing acts that contravene the prohibition on sexual harassment in connection with work.
What is sexual harassment?
Sexual harassment can include conduct such as:
- Inappropriate staring, leering or loitering
- Unwelcome touching
- Suggestive comments or jokes, insults or taunts based on sex, or sexual gestures
- Using suggestive or sexualised nicknames for a person
- Persistent unwanted invitations to go out on dates
- Intrusive questions or comments about a person’s private life or body
- Unnecessary familiarity, such as deliberately brushing up against a person
- Displaying material of a sexual nature in the workplace
- Communicating sexually explicit material in person or through phone calls, online interaction, email, social media or text messages
How to prevent workplace sexual harassment?
- Get high-level management support to implement a comprehensive strategy to address sexual harassment.
- Write and implement a sexual harassment policy.
- Provide regular training and information on sexual harassment to all staff and
- Encourage appropriate conduct by managers.
- Create a positive workplace environment.
How will the Fair Work Commission deal with a dispute?
A person who alleges they have been sexually harassed in the workplace can now make an application to the FWC to deal with a sexual harassment dispute.
Once the dispute has been made to the Fair Work Commission, a FWC member will be assigned to the case and make a decision on how to deal with the matter, including listing the matter for a conference (mediation or conciliation) or hearing. Parties may also seek to have the sexual harassment dispute dealt with by arbitration at the FWC if a resolution could not be made by other attempts.
All conferences with respect to sexual harassment disputes will be conducted privately. The parties have the option to include a non-disclosure or confidentiality clause in the terms of settlement once the matter is finalised.
What if you have experienced workplace sexual harassment?
Your employer should have effective policies in place to prevent sexual harassment from occurring in the workplace. This includes appropriate reporting procedures in place for you to report sexual harassment in the workplace and the encouragement of making such reports.
If you have experienced workplace sexual harassment, you can contact us on 1300 268 887 to discuss your options.
Some forms of sexual harassment may be criminal acts, such as indecent exposure, stalking, sexual assault and obscene or threatening communications. These matters should be referred to Police.
Richard v Oracle Corporation Australia Pty Ltd 
Mr Tucker has sexually harassed Ms Richardson within the meaning defined under s 28A of the Sex Discrimination Act 1984 on various occasions. As Mr Tucker was acting in his course of employment, Oracle the employer of both Mr Tucker and Ms Richardson is vicariously liable for Mr Tucker’s conduct under Part 3-5A of the Fair Work Act 2009. While Oracle would not be held vicariously liable for Mr Tucker’s conduct if they prove that they took all reasonable steps to prevent the employee from doing acts that contravene the prohibition on sexual harassment in connection with work.
The conduct of the HR staff while investigating the matter failed to fall below the reasonable prevention standard as there was still regular interaction between Mr Tucker and Ms Richardson during the investigation which contributed to some extent of psychological impact on Ms Richardson. While Ms Richardson received significant damages, the burden of considerable time and cost lie on the shoulders of the victim.
By empowering the FWC to deal with sexual assault disputes, it improves the lived experiences of the person who alleges they have been sexually harassed in the workplace by dispute conducted privately with the option of a non-disclosure or confidentiality clause in the terms of settlement once the matter is finalised. Further empowering them to seek legal remedies.
How can Coutts help?
Coutts is here to guide you through the recent amendments to the Fair Work Act regarding sexual harassment. Whether you’re an employer seeking to ensure compliance or an employee who has faced harassment, our Employment team can provide comprehensive advice tailored to your unique situation. Don’t risk non-compliance or navigate this challenging terrain without expert assistance. Contact Coutts today!
This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever to this blog, including all or any reliance on this blog or use or application of this blog by you.