Sexual Harassment law in Australia continues to evolve – 7 Steps Employers (and HR) need to take now
Jonathan Mamaril
Employment and HR Lawyer | Director | Speaker | lawyer for employers
The last 12 to 18 months have seen significant changes in Sexual Harassment in the workplace. This includes high profile legal cases involving sexual harassment, changes to the Fair Work Act and the appointment of a new Sex Discrimination Commissioner.
Sexual Harassment continues to evolve starting with a new positive obligation on employers to prevent sexual harassment in the workplace, forcing employers to have some type of process in place to deal with sexual harassment complaints and now Victoria looking to restrict non disclosure agreements (NDAs) and deeds of settlement.
What is Sexual Harassment?
Sexual harassment involves unwelcome behaviour or conduct of a sexual nature in the workplace.
Some of the most common forms include:
The key elements in determining whether behaviour constitutes sexual harassment is whether:
Some of the Changes in Brief
Positive Duty
There are a number of changes starting with a new positive obligation mandate employers to take proactive steps in preventing and addressing sexual harassment, sex discrimination and victimisation in the workplace.
In practical terms, employers need to prove they took steps to stop the offending conduct to avoid liability (or at least mitigate the liability).
Psychosocial Hazards
This is coupled with the onset of Psychosocial Hazards in the workplace where workplace interactions such as sexual harassment is one of the more obvious hazards which need to be identified, assessed and control measures implemented. ?As such, workplace health and safety breaches will now arise from sexual harassment complaints and claims.
Stop Sexual Harassment Order
Another area of change has been the ability for an aggrieved person to file a stop sexual harassment order in the Fair Work Commission which has more elevated options from mere stop workplace bullying orders.
This includes the ability to seek:
General Protections
As these potential actions also create workplace rights, the action of General Protections should also be considered as a large potential legal risk.
Sex Discrimination Commissioner
Further, the Sex Discrimination Commissioner has wide ranging powers to investigate and enforce compliance of sexual harassment legislation and it’s positive duty.
This includes powers to:
·?????? provide and even require training and education to be undertaken in a company on sexual harassment
·?????? implement sexual harassment policies and procedures
·?????? ensure that reporting mechanisms are set out clearly and are promoted within the company so there is clarity on what steps need to be taken
·?????? ensure investigations are undertaken appropriately and thoroughly
·?????? assess whether appropriate action has been taken against offenders
·?????? assess and provide guidance on the support offered to victims
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The powers also extend outside of traditional employee and employer relationships and also include gig workers, volunteers, contractors and labour hire.
Non Disclosure Agreements and Deeds of Settlement
An interesting new development is currently occurring in Victoria, Australia where a key recommendation from the Victorian ministerial taskforce on Workplace Sexual harassment opined that NDAs and Deeds needed some restriction in its applicability and use. The rationale being that the NDAs and deeds were being used to protect perpetrators and silence victims.
The consultation process is currently underway and is seeking input from all stakeholders including Employers on prohibiting or limiting the legal use of NDAs and deeds in sexual harassment complaints.? Some ideas that are being put up for discussion include:
·?????? review and cooling off periods
·?????? permitted disclosures to prospective employers, union representatives, third party regulators and support persons
·?????? the complainant being required to seek independent legal advice before signing
·?????? mechanisms to ensure that undue pressure is not placed on a victim to sign the NDA
·?????? confidentiality waiver options
·?????? time limitations on duration of an NDA
This is an interesting development and may well change how sexual harassment complaints are treated going forward from a risk mitigation perspective.
Employers and HR need to take steps
It is important more than ever now for Employers to take steps mitigate liability and risk in regards to sexual harassment in the workplace.
1.???? Prepare, review and develop sexual harassment policies and procedures:?Sexual harassment policies need to clearly define what constitutes sexual harassment, outline the consequences for offenders and the required standard of the Employer. ?Regular and consistent communication of these policies are essential.
2.???? Clarify what steps are to be taken for a sexual harassment complaint: a procedure should be set out clearly for what steps need to be taken to make a sexual harassment complaint and in particular all escalation points
3.???? Provide training and education:?conduct regular sexual harassment training sessions for staff with a particular emphasis on the standards expected and key points about respectful interaction between staff.
4.???? Management training and education and even for Boards: it is important to have specific training for management teams, executive and leadership teams and boards on the legal aspects of sexual harassment and also how the policies and processes interact with those obligations. There needs to also needs to be crucial importance placed on the steps taken once a sexual harassment complaint has been made .
5.???? Encourage open communication channels: Communication channels need to be created so employees feel comfortable in reporting incidents without retaliatory fears.
6.???? Conduct thorough investigations:?With the onset of the new laws it is more crucial than ever to ensure sexual harassment investigations are impartial, handled with sensitivity and done correctly. This should include being provided with an investigation plan, being updated regularly and being given an investigation report.
7.???? Be prepared to take swift action: Whether NDAs or Deeds will be a thing of the past, swift action will need to be taken.? If you look at a lot of the high profile cases those who “swept issues under the rug” seemed to have major problems as their matters progressed.? Being transparent and taking proper action through policies and processes gives Employers the ability to take swift action once there is a clear conclusion of misconduct.
Sexual harassment is continuing to evolve and that means Employers and Human Resources need to evolve as well.? The steps you take now will very likely dictate the legal liability in the future and any preventive measures you can take.
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Employment Lawyer
MCom GDLP LLB BA
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