Prohibiting Sexual Harassment at Work
Wollongong business should be aware that there are new laws relating to Sexual Harassment in the workplace. Failing to have a workplace sexual harassment policy and training will result in a hefty Fair Work Commission fines for small and medium businesses in Wollongong. All employers should get HR help with the new sexual harassment laws.
The newly introduced provision in the FW Act will be modelled on the clause contained within the Sex Discrimination Act but will be slightly broader as it will be contained within the Sex Discrimination Act but will be slightly broader as it will extend to prospective workers. The provision provides that a person (the first person) must not in connection with the workplace sexually harass another person (the second person) who is:
- A worker in a business or undertaking;
- Seeking to become a worker in a particular business or undertaking; or
- A person conducting a business or undertaking.
The prohibition will also include sexual harassment perpetrated by third parties, such as customers or clients.
The definition of “worker” is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
Employers will be vicariously liable for any sexual harassment perpetrated by their employees or agents if the harassment was done in connection with the employment or engagement. This ensures an aggrieved person can obtain a remedy from the principal in addition to, or instead of, the perpetrator and is consistent with the approach to addressing sexual harassment under the Sex Discrimination Act, ensuring a coherent federal framework.
However, an employer will not be vicariously liable if the employer proves that it took all reasonable steps to prevent the employee or agent from engaging in sexual harassment. Employers who fail to take all reasonable steps to prevent workplace sexual harassment may be held to be vicariously liable as well as be subject to enforcement action in accordance with the new positive duty that will be inserted in the Sex Discrimination Act.
In this respect all employers are required to consider and implement timely steps to address the possibility of sexual harassment in the workplace if they are to avoid future liability possibly.
In relation to dealing with sexual harassment disputes, applications can be made for the FWC to deal with a dispute and aggrieved individuals may make joint applications. The intent of this is to provide the FWC with flexibility to deal with multiple parties together where appropriate, for example, if there is a common perpetrator or principal or the sexual harassment occurred in the same business or undertaking.
Significant penalties have also been introduced.
Anti-discrimination and special measures
A further three protected attributes will be inserted into the anti-discrimination provision in the FW Act to bring the FW Act into alignment with other Commonwealth anti-discrimination legislation.
These attributes are breastfeeding, gender identity and intersex status.
Ring John Morrissey to get an updated Sexual Harassment Policy and training
requirements.
