News

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022

Employers would have recently been hearing about a host of changes to the Fair Work Act 2009 (Cth) pursuant to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, to be implemented over varying stages of the rest of the year.
One key change to be made to the Fair Work Act 2009 (Cth), which takes effect from 6 March 2023, is in relation to sexual harassment and the obligations on employers with respect to preventing and addressing sexual harassment in the workplace.

What is sexual harassment?
Sexual harassment is defined as:
• when a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours; or
• when a person engages in other unwelcome conduct of a sexual nature;
in circumstances in which a reasonable person, having regard to all the circumstances would have anticipated the possibility that the person harassed would be offended, humiliated, or intimidated.
The intent of the perpetrator of sexual harassment is irrelevant and the sexual harassment need not be repeated.

What are the key changes to the Fair Work Act 2009 (Cth)?
First and foremost, employers have an obligation to manage the health and safety risks of sexual harassment at work, as part of their obligation to provide a safe workplace under health and safety legislation. Workers too are responsible for making sure they don’t adversely affect the health and safety of others, pursuant to health and safety legislation.
In addition to the above, the changes to the Fair Work Act 2009 (Cth) introduce an express prohibition on sexual harassment, a breach of which can result in claims and civil penalties.
The prohibition extends to all “workers” i.e., employees, contractors, volunteers, students, apprentices etc.
The prohibition also covers prospective workers and third parties such as clients and customers.

An aggrieved person can seek remedy from the employer in addition to seeking remedy from the individual perpetrator, where the employer cannot prove it took all reasonable steps to prevent the relevant sexual harassment.

That is, in the event of a claim of sexual harassment, an employer must be able to prove it took all reasonable steps to prevent the sexual harassment.
Applications regarding sexual harassment can be made to the Fair Work Commission (‘FWC’), which has various powers in dealing with such applications i.e., the FWC has the power to make a stop sexual harassment order; it may conciliate the matter; it may arbitrate the matter with agreement of the parties and which may result in an order for compensation; or it may effectively refer the matter to court.
In handling sexual harassment related applications, the Fair Work Commission will have regard to the internal procedures of an employer; and any outcomes arising out of any internal procedure available to the aggrieved person.
The changes also bring the Fair Work Ombudsman powers to investigate and bring civil penalty proceedings against employers or individuals for contraventions of the prohibition on sexual harassment in the workplace.
Finally, a positive duty is to be inserted into the Sex Discrimination Act 1984 (Cth), which means employers who fail to take reasonable steps to prevent workplace sexual harassment more broadly in the workplace may also be subject to enforcement action.

Steps for employers to take to ensure they meet their obligations
As emphasised above, for an employer to prove they had taken all reasonable steps to prevent the relevant sexual harassment, they will need to:
• create a workplace culture that encourages people to speak up about sexual harassment;
• implement training from board-level down on sexual harassment and sex-based discrimination (including but not limited to new matters added to the Fair Work Act 2009 (Cth)). Such training should be mandatory and periodic (not just a one-off);
• review and if necessary, revise internal policies and procedures on sexual harassment (that covers all relevant parties). There must be clear procedures for responding to incidents and prompt, serious action taken by an employer in response to a complaint of sexual harassment; and
• manage sexual harassment risk in the same way other safety risks are managed i.e., undertake a sexual harassment specific risk assessment and implement appropriate controls in response to any risks identified.

For further advice regarding your obligations regarding sexual harassment as an employer, including implementing appropriate policies and procedures, please contact Workplace Legal on (03) 9972 4950 or at info@workplacelegal.com.au.