In the ever-evolving world of employment law, Australia has taken a significant step forward with the introduction of new sexual harassment laws. These laws, which came into effect on 6 March 2023, mark a pivotal change in the way sexual harassment will be addressed in Australian workplaces. With these changes, the Fair Work Act 2009 now includes provisions that explicitly prohibit workplace sexual harassment, with the intention that this will create a more secure and respectful environment for all employees.
The Essence of the Changes
Sexual harassment has long been a pervasive issue in workplaces across Australia. The new legislative amendments aim to tighten the reins on this problem by imposing stricter regulations and responsibilities on employers. Notably, the changes introduce a positive duty for employers to proactively prevent sexual harassment in their organisations.
Key Features of the New Sexual Harassment Laws
1. Prohibition of Workplace Sexual Harassment
The Fair Work Act 2009 now explicitly bans sexual harassment associated with work. This broadens the scope of protection against such behavior.
2. Positive Duty for Employers
Employers are now legally obligated to take proactive steps to prevent sexual harassment in their workplaces.
3. Expanded Legal Recourse
Workers, unions and the Fair Work Ombudsman have been granted more extensive rights to seek compensation and other remedies against individual harassers and businesses failing to protect their employees.
What Constitutes Sexual Harassment?
Sexual harassment can include a range of unwelcome behaviors such as unwanted kissing, inappropriate physical contact, leering, sexually explicit (and even implicit) communications and more. It’s important to recognise that these actions need not be directed at an individual specifically; a hostile or sexually charged work environment may also constitutes harassment.
Understanding the Purpose of the Legislative Changes
The amendments stem from a recognition that existing laws have been insufficient in tackling sexual harassment in the workplace. They are designed to not only provide enhanced protection for workers but also to encourage employers to foster a workplace culture free from harassment.
Application and Coverage of the New Laws
These laws apply to all workers, including volunteers, contractors and students on work experience, and extend to anyone running or undertaking a business. Importantly, these regulations hold employers accountable for harassment perpetuated by their employees or agents, unless they can demonstrate that they took all reasonable measures to prevent it.
Navigating the New Terrain
With these changes taking effect, it’s crucial for both employers and employees to be fully aware of their rights and responsibilities under the new laws. Employers, in particular, need to ensure that they are taking proactive steps to prevent sexual harassment and creating a safe work environment for all. For any uncertainties or legal guidance, seeking professional legal advice is highly recommended.
To learn how these new legislative changes may impact your business and how to implement them and positively comply with your duties to ensure that you and your business remain legally compliant, contact OpenLegal at enquiries@openlegal.com.au or 1300 337 997.
Junzhuo, an intern at OpenLegal, is a law graduate from UNSW and a newly admitted lawyer in NSW with extensive experience in global firms' PRC and Hong Kong offices. Her background provides her with practical knowledge in corporate compliance, finance, and contract law.
Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
