Sexual Harassment Update and Video Tool

Edge Legal

20 April 2023

Just like the more general obligation to take positive steps to address psychosocial risks, a number of jurisdictions have ‘followed suit’ by applying a positive duty in regard to sexual harassment.  We expect this approach will be mirrored across all Australian jurisdictions and encourage employers to act now and commence processes and practices which proactively address this inevitable change.

Queensland and ACT leading the way by reinforcing existing laws

In our previous articles we noted the amendments to the Commonwealth Sex Discrimination Act 1984 largely implemented the recommendations from the much-vaunted Kate Jenkins report particularly in regard to establishing the positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex based discrimination and harassment and hostile workplace environments and victimisation. State governments are now following this trend by reinforcing the same message.

Queensland recently declared its in-principle support for all recommendations from a major review of its Anti-Discrimination Act including an amendment which imposes upon employers a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and other prohibited conduct as far as possible. 

The ACT had earlier passed a bill through its Parliament which imposed a positive duty on government, organisations and businesses to eliminate discrimination, sexual harassment and unlawful vilification. The duty will apply to organisations and any individual, such as a CEO or sole trader, with organisational management responsibility, as opposed to lower or mid-level managers or general employees.

Existing WHS and Fair Work Act Obligations

In our previous articles, we have also discussed the recent legislative and regulatory changes which have shifted the priority from strict compliance to a more proactive focus on prevention.  Sexual harassment also falls within organisation’s WHS duties and therefore employers generally have a duty to provide a safe workplace to the extent that it is reasonably practicable in terms of sexual harassment, sex-based harassment and hostile work environments. 

In addition, the Fair Work Act’s new power for FWC to deal with sexual harassment disputes and resolve them in a similar manner to the already existing Bullying jurisdiction is a further reinforcement of the general principle – noting of course a person generally can’t make concurrent claims for the same matter in multiple jurisdictions.

Recommendation – Apply ‘Best of the Best’

The steps that can be taken by employers to satisfy the positive duty to eliminate sexual harassment are practically same as for psychosocial risks.  The duties between WHS specific duties and sexual harassment from a discrimination perspective should be seen as mutually reinforcing as opposed to presenting any specific inconsistencies or increased regulatory burden.

Our advice to Employers remains the same as it was for addressing psychosocial safety generally.  Avoid playing ‘jurisdiction roulette’ and simply adopt a ‘best of the best’ approach to ensure best practice and a “results with respect” workplace.

Practical Steps – Video Resource

To assist our retainer clients, we have created a generic video which can be used as a first level training resource focusing specifically on sexual harassment, sex-based harassment and hostile work environments.  The video resource is just one component of a number of practical options that employers will need to consider implementing as part of their elimination and control measures.  Employers are encouraged to apply a holistic approach which will have multiple components with specific high risk areas targeted with additional resources.

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