Sep 16

Respect@Work: what do the recent changes to sexual harassment laws mean for complaints handling and investigations?

Upcoming changes to sexual harassment laws present an important opportunity for employers to review their frameworks for compliance and prevention of sexual harassment in the workplace.

Parliament has now passed a raft of amendments, reflecting an increasing societal and regulatory focus on how best to combat this pervasive workplace issue. The changes mark the Government’s response to the recommendations contained in the Respect@Work Report which was released by the Sex Discrimination Commissioner in March 2020, which followed a comprehensive national inquiry into workplace sexual harassment.

What are the changes?

These amendments will:

  • enable workers to apply to the Fair Work Commission for orders to prevent the worker from being sexually harassed at work, even where there has been a single incident of sexual harassment (‘stop sexual harassment orders’);
  • specifically define, and make unlawful, harassment on the basis of sex (‘sex based harassment’);
  • extend the coverage of the Sex Discrimination Act to volunteers, interns and the self-employed (notably, the Act will now pick up the concepts of “worker” and Person Conducting a Business or Undertaking, or PCBU, as used in Workplace Health and Safety legislation);
  • clarify that sexual harassment can be a valid reason for termination, in the context of determining claims of unfair dismissal.

A number of these changes merely clarify the operation of the existing law, although such clarity still assists employers, complainants and other workplace participants in understanding their rights and responsibilities.

Stop sexual harassment orders

The Fair Work Act currently enables workers to apply to the Commission where they reasonably believe that they have been bullied at work. Where the Commission is satisfied that bullying has occurred, and that there is a risk it will continue, there are broad powers to make orders to prevent this from occurring, which can include orders about how workplace participants are to interact with each other or work together.

 “Bullying” is defined as repeated unreasonable behaviour that creates a risk to health and safety (which includes a risk to psychological health and safety).  As such, “sexual harassment” can be a form of bullying (at least where it is repeated). These changes, however, put beyond doubt that workers may seek the Commission’s assistance where they believe they are the subject of sexual harassment, including where it is a once off occurrence, provided that the Commission is satisfied that there is a risk it will continue.  If a party contravenes any such an order, it is then dealt with as a breach of the Act itself.

The option for workers to seek stop sexual harassment orders presents another potential avenue of external redress for workers who are aggrieved by workplace sexual harassment. The Act will not require workers to have first sought to raise their complaint internally, although the Commission must take into account the employer’s internal procedures and the outcome of any investigation.

What is sex based harassment?

Sexual harassment is defined as unwelcome conduct of a sexual nature which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Conduct which is clearly sexual in nature, such as intrusive questions about a person’s sex life or requests for sexual favours, could clearly meet this definition. What about harassment of a person on the grounds of their sex which is not sexual in nature? Such conduct might include, for example, degrading or humiliating comments about a woman who is seen as performing a ‘man’s’ job.

Whilst such conduct is likely to constitute sex discrimination, the Respect@Work Report found that this was not widely understood. As a result of the amendments, the Sex Discrimination Act will now clearly provide that sex based discrimination is unlawful, which is defined as unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances in which a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.

Implications for employers

The new laws have not yet taken effect, giving employers time to review their strategies and frameworks for compliance and complaints handling. Employers should:

  • Ensure they provide clear behavioural expectations which are regularly communicated to employees – review and revise their policies and procedures in line with the changes, supported with appropriate refresher training;
  • Encourage complainants to raise issues internally first – by having clear, accessible and well publicised systems for raising complaints and procedures for complaints management and investigations, employees with concerns are more likely to attempt to raise issues internally first, rather than pursue external avenues of complaint;
  • Ensure all complaints are taken seriously and dealt with promptly – not every complaint will necessarily require an extensive formal investigation, but all complaints must be assessed by an appropriate person and a decision made as to how to manage the complaint, based on logical and rational reasons;
  • Ensure investigators have the requisite knowledge, skill and impartiality – workplace investigation, and specifically the investigation of sexual harassment complaints, requires a particular skill set and level of experience.  Many organisations will not have the internal expertise or capacity to effectively investigate and manage complaints. Particular issues are also raised where the respondent is a senior officer of the organisation, and it is sometime not possible for such matters to be investigated internally because of the seniority and authority of the respondent;
  • Ensure rigorous practices for documenting complaints management – organisations should be in a position to demonstrate, through appropriate record keeping, how every complaint of sexual harassment has been handled, and that it has been taken seriously and acted upon promptly.

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