We are starting to see the effect of changes to employer obligations in relation to sexual harassment in the workplace.

A number of high-profile industrial incidents in Australia demonstrate the effect of increased expectations and positive obligations on employers to take action in incidents of workplace sexual harassment.

What is sexual harassment

Sexual harassment is unwanted sexual advances, or behaviour of a sexualised nature, that causes an individual to feel threatened, intimidated, offended or humiliated. The test is how a reasonable person would interpret the behaviour in the situation.

The intention of the harasser is not relevant. It does not have to be repeated or continuous behaviour and can include one off incidents.

Changes to the law

Changes to the Fair Work Act 2009 came into effect on 6 March 2023. The changes prohibit sexual harassment in the workplace, and both the individual and the company can be held liable for sexual harassment occurring in the workplace.

There is now a positive obligation on employers to ensure that every reasonable measure is taken to prevent sexual harassment from occurring in the workplace. Failure to comply with the obligations can result in significant penalties, including substantial fines for individuals and corporations.

Impact on workplaces

There has been an increase in coverage of high-profile incidents of sexual harassment in the workplace, resulting in employers taking steps to terminate employment in situations where previously we did not see this happening. This includes high-ranking employees, board members and CEOs. Most prominent in this discussion is the range of personnel changes at Nine Entertainment in relation to allegations of inappropriate conduct and failures in providing a safe and healthy workplace.

Despite some of the allegations going back years or decades, the decisions have been swift in response to the obligations on workplaces and directors. This suggests that businesses are aware of the risks, and taking more proactive approaches to addressing sexual harassment in the workplace.

It is more important than ever for employers to take allegations of sexual harassment and inappropriate conduct seriously, and act on complaints swiftly.

Conclusion

It is a timely reminder to take steps to review and update sexual harassment policies, implement appropriate trainings procedures, and ensure that you are encouraging a safe workplace with a culture of respect and inclusion.

If you have any questions about this article, please get in touch with Holman Webb Lawyers’ Workplace Relations team.