Sexual Harassment in the Workplace: Updates for Employers starting 12 December 2023

Sexual harassment and discrimination in the workplace is a widespread issue that poses serious challenges for employees and employers alike. It’s an issue that affects people across different industries and locations.

From the 12th of December 2023, the Australian Human Rights Commission (AHRC) will hold enhanced powers to enforce a new positive duty on employers to eliminate unlawful sex discrimination and related conduct in the workplace.

Before we go into what this means for employers, we must first understand why this is an issue in the first place.

What the Numbers Say About Sexual Harassment in the Workplace

In March 2020, the Australian Human Rights Commission released the Respect@Work Report with the following key findings:

• In 2018, one in three Australian workers had experienced workplace sexual harassment in the last five years. While sobering, this statistic drives home the fact that it’s sadly not uncommon to experience sexual harassment in the workplace.
• The current system places the onus on the victim to complain. That said, only 17% of the people who reported being sexually harassed at work in the Commission’s national survey made a complaint.
• Sexual harassment happens in all workplaces. According to the report, sexual harassment happens in rural, regional, and metropolitan settings. It also happens to workplaces of all sizes, from small businesses to large ones.
• Workplace sexual harassment has a high cost. Aside from the emotional and psychological impact, workplace sexual harassment has a financial impact on the economy. Deloitte Access Economics estimated that workplace sexual harassment cost the Australian economy $3.8 billion in 2018.

Aided by these findings, the Report made several recommendations to improve the state of reporting sexual harassment in the workplace.

What Positive Duty Means For Employers

So where does the AHRC come in? 

One of the recommendations that the AHRC made based on the Report’s findings was to change how reporting works. 

The AHRC recommended introducing a positive duty in the Sex Discrimination Act. This means shifting the emphasis from a model that relies on complainants coming forward, to one where employers must continuously assess and evaluate whether they are meeting the requirements to eliminate sexual harassment and discrimination in the workplace. 

Employers now have the positive duty to take “reasonable and proportionate measures” to eliminate unlawful sex discrimination, including sexual harassment, hostile working environments, and victimisation.

To enforce this positive duty, the AHRC now have new functions and powers that include:

• Conducting inquiries into compliance with the positive duty
• Providing recommendations to employers to achieve compliance
• Issuing and enforcing compliance notices
• Applying to the federal courts for an order to direct compliance with a compliance notice
• Entering into enforceable undertakings with a business, under which the business agrees to do or, or refrain from doing, certain actions

This shift aims to encourage employers to proactively and continuously implement measures to fulfil their duty. This would redirect attention from individual complaints to overall compliance with prevention measures.

Preventing Sexual Harassment as an Employer

As an employer or business owner, how can you prevent sexual harassment from happening in the workplace?

No two businesses or employers are identical, and there is no one-size-fits-all approach to ensuring compliance and responding to your positive duty. However, here are some concrete ways to help you fulfil your obligations when it comes to sexual harassment in the workplace:

• Review systems to identify deficiencies under the Sex Discrimination Act
• Update policies, procedures, training, and work health and safety practices
• Provide tailored training for employees and managers.
• Establish accessible reporting mechanisms and ensure timely investigation and resolution of reports
• Ensure your management and leadership team understand their obligations and how to identify/respond to sex discrimination sexual harassment and sex-based harassment
• Assess your workplace to identify potential for sexual harassment
• Have a sexual harassment policy, or review and update your policy to comply with the new obligations
• Know how to handle complaints about sexual harassment and encourage the reporting of incidents
• Develop a prevention plan outlining measures the business will be taking to prevent and respond to sexual harassment

We also have a Fact Sheet on Sexual Harassment that we’ve designed to be easily digestible for employers and employees alike. Download it here.

Complying with the Law

Preventing and eliminating sexual harassment in the workplace is an obligation that employers have to their employees. Not only is it an ethical obligation on the employer’s side, it also ensures compliance with the law.

Affected employees can now start civil proceedings against the employer if they are unable to resolve their case with the Fair Work Commission. Effectively, the employer becomes liable for the sexual harassment and can be civilly pursued.

Whether you’re just starting out, or have an established business, it’s important to get your HR right. Having solid HR foundations can help you avoid issues around sexual harassment. 

Now Actually specialises in HR foundations, like creating, reviewing, or updating your Sexual Harassment policy. Reach out to our team to ensure you’re compliant with the law and set yourself up for success in 2024 and beyond.