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Sexual Harassment: It’s time to get your house in order Time is running out to get your house in order... There are new sexual harassment laws proposed by the Federal Government. Employers need to determine where to draw the line between harmless banter and sexual harassment. By Jonathan Mamaril. Manufacturing and blue-collar businesses could find themselves embroiled in costly legal battles unless they overhaul their sexual harassment policies to align with the Federal Government’s new ‘Respect at Work’ laws. On 1 September, the Federal Government acted on the recommendations of Australia’s Sex Discrimination Commissioner Kate Jenkins and passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 – strengthening Australia’s stance on sexual harassment in the workplace. The law change means employees can be fired if they are found to have sexually harassed a colleague. It’s left employers in male-dominated industries, including transport, manufacturing and construction, where banter and sexual innuendo is often more common, urgently reviewing how they protect their staff, and themselves. Sexual harassment is not always clear-cut, and what can seem like harmless workplace flirting or cheeky banter, may land employees, and potentially employers, in hot water. So, what’s the solution? A Turnbull-style bonking ban? A banter ban?
The law change means employees can be fired if they are found to have sexually harassed a colleague A ‘stop sexual harassment order’, similar to the ‘stop workplace bullying order’ that has existed for some time now, has also been implemented.
Judges and politicians will be subject to the sexual harassment laws While not directly applicable to the manufacturing industry, it’s also interesting to note these sexual harassment laws will apply to government workplaces for the first time. As a result, we may see even more claims of sexual harassment from staffers and public service.
It’s time to be proactive
The line is a difficult one to draw, but employers need to work out where to draw it now.
There are several initiatives employers can implement to ensure a safe workplace.
While the Federal Government’s new laws aren’t as heavy-handed as originally anticipated, the ‘me too’ movement has taught us even in the absence of strict laws, society will hold perpetrators and bystanders to account.
1. More specific sexual harassment training;
So, what is sexual harassment? The Sex Discrimination Act 1984 (Cth) defines sexual harassment as: • an unwelcome sexual advance; • an unwelcome request for sexual favours; or • unwelcome conduct of a sexual nature in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Intention of the ‘harasser’ is completely irrelevant. Instead, the law focusses on how their actions or words are perceived.
An expanded definition of ‘Serious Misconduct’ under the Fair Work Act Some employment contracts already state that sexual harassment is ‘serious misconduct’. This gives an employer the ability to dismiss an employee who has been found to be a harasser. In line with Kate Jenkins’ Respect@Work recommendations, ‘serious misconduct’ will be incorporated into the Fair Work Act. It will therefore apply to all employer-employee relationships, regardless of the contract. This will make it easier for employers to defend an unfair dismissal claim where an employee’s contract has been terminated due to sexual harassment. It also means the harasser will need to prove sexual harassment did not occur to avoid serious repercussions.
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2. Prescriptive sexual harassment policies; 3. A crackdown on sexual jokes, innuendo or other behaviours; and 4. Greater scrutiny and transparency in the investigation of sexual harassment complaints. Proactive measures should also consider employees’ psychological health. This will no doubt require more management training on how to identify psychosocial risks, and what to do if they suspect an employee’s psychological health is impacted.
Some practical tips Prevention is always the best approach, but if you’re an employer and find yourself dealing with a sexual harassment complaint, there are two golden rules: 1. Complaints must be handled with care and empathy – trust is key; and 2. A thorough investigation should commence immediately after an allegation is made. This is not the time for a DIY approach. A lawyer-run investigation, or at least obtaining legal advice, will ensure a fair process for all parties. These new laws pave a clearer path for employees to file sexual harassment complaints. It’s time to get your house in order. Jonathan Mamaril is Director of NB Lawyers. For all Manufacturing Employers, NB Lawyers can offer an obligation-free consultation. Tel: +61 (07) 3876 5111 Email: service@nb-lawyers.com.au www.lawyersforemployers.com.au
