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The Fair Work Act 2009 (Cth) has been recently amended to prohibit (or ban) sexual harassment in connection with work, including in the workplace. The changes took effect from 6 March 2023. The new provisions expand protection from sexual harassment to protect workers including employees, contractors, subcontractors, outworkers, interns, apprentices, trainees, work experience students, and volunteers, future workers and people conducting a business or undertaking such as a sole trader or self employed person. This means that a person or company can be liable for sexual harassment conducted by an employee or agent in connection with work, including if they were involved in the employer’s contravention, unless the person or company can prove that they took all reasonable steps to prevent the sexual harassment.

As a result of the new changes, the Fair Work Commission has also been given authority to exercise wider powers to deal with workplace sexual harassment. In addition to its existing ‘Stop Sexual Harassment Order’ powers, the Commission can deal with such disputes by way of conciliation, mediation, recommendations, or even arbitration if required. The Commission can also make orders for compensation, lost wages or require a person to remedy any loss or damage suffered. Applications can be made to the Commission or in court in some circumstances.

Therefore, it is pertinent for businesses and employers to have a sound system in workplace to eradicate any sort of sexual harassment. Some of the examples of behaviour that would constitute to sexual harassment are inappropriate or unwelcome physical contact or touching, staring or leering, suggestive comment or joke, sexually explicit picture or poster, unwanted invitation to go out on dates, request for sex, intrusive questioning about a person’s private life or body, unnecessary familiarity, deliberately brushing up against a person, insult or a taunt of a sexual nature, or sexually explicit email or text message.

Businesses can control and prevent sexual harassment by:

  • creating a safe physical and online working environment
  • providing information, instruction, training and support about the importance of preventing and addressing sexual harassment in the workplace
  • addressing unwanted or offensive behaviour early
  • encouraging reporting of sexual harassment and having effective complaints procedures.

A person conducting a business or undertaking (PCBU) has a positive duty under the model WHS laws to eliminate or minimise the risk of sexual harassment at work, including sexual harassment between workers, and from other people at the workplace, like customers and clients. The leadership team (i.e management) should be committed to promote Workplace Equality and Respect, and incorporate this in the work plan.

The workplace prevention and response model is structured around seven interrelated domains:

  • Leadership
  • Risk assessment and transparency
  • Culture
  • Knowledge
  • Support
  • Reporting
  • Measuring

The WHS risk management process must be followed to manage the risk of sexual harassment. There are a range of things the employers must take into account when deciding what control measures to implement. For example:

  • how frequent and severe the exposure is
  • other psycho-social hazards that might increase the risk of harm
  • the physical work environment (e.g. safety and visibility)
  • the design of work and systems of work (e.g. supervision and support)
  • implementing training for workers and appropriate workplace policies
  • implementing effective complaint/reporting procedures, and encouraging the reporting of sexual harassment

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