Know Your Obligations: The Fair Work Act, Sex Discrimination Act and WHS Amendments

Amendments to the Fair Work Act 2009 in relation to sexual harassment

Craig Green

What is covered in this session?

▪ Changes to the Fair Work Act 2009 (Cth), Sex Discrimination Act 1984 (Cth) and WHS amendments.

- What this mean for you in the workplace; and

- Some practical steps that you and your firm can take to meet your obligations.

Part 1: Definition of sexual harassment

Part 2: Inclusion in the definition of “serious misconduct”

Part 3: Express provision relating to sexual harassment in the Fair Work Act 2009 from 6 March 2023

Part 4: Applications and Orders to stop sexual harassment

Part 5: Accessorial/Bystanders

The Respect@Work Sexual Harassment National Inquiry Report in 2020 found workplace sexual harassment occurs in every industry and at every level across Australian workplaces.

Part 1:Sexual Harassment

A person sexually harasses another person if:

▪ they make an unwelcome sexual advance, or an unwelcome request for sexual favours to the person who is harassed; or

▪ they engage in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated, or intimidated.

Fair Work Act s.12

Sex Discrimination Act s.28A(1)

Circumstances to be taken into account

The circumstances to be taken into account include, but are not limited to, the following:

(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;

(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

(c) any disability of the person harassed;

(d) any other relevant circumstance.

Conduct of a sexual nature

▪ "conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Examples of sexual harassment

Examples of conduct of which may constitute a sexual advance, a request for sexual favours or other conduct of a sexual nature include:

- sexually suggestive comments or jokes;

- intrusive questions about private life or physical appearance;

- unwanted invitations to go on dates, or requests or pressure for sex;

- sending sexually explicit or suggestive pictures or gifts to a worker, or displaying sexually explicit or suggestive pictures, posters, screensavers or objects in the work environment;

Examples (cont’d)

- intimidating or threatening behaviours such as inappropriate staring or leering, sexual gestures, or following, watching or loitering;

- inappropriate physical contact, such as deliberately brushing up against a person, or unwelcome touching, hugging, cornering or kissing;

- behaviours that may be offences under criminal laws, such as actual or attempted rape or sexual assault, indecent exposure or stalking;

Examples (cont’d)

- sexually explicit or suggestive emails, SMS or social media (including the use of emojis with sexual connotations), indecent phone calls, circulating pornography or other sexually graphic imagery, unwelcome sexual advances online, or sharing or threatening to share intimate images or film without consent.

Part 2 – Serious Misconduct

The Government recognised the importance of ensuring that employers are clearly empowered to dismiss perpetrators of sexual harassment when appropriate.

To support this, the Government amended section 387 of the Fair Work Act 2009 (Cth) to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal when determining whether a dismissal was harsh, unjust or unreasonable.

The definition of “Serious Misconduct” in the Fair Work Regulations 2009 was also amended to include reference to sexual harassment.

The inclusion of a specific and express reference to sexual harassment in the definition of “Serious Misconduct” clarifies that this type of behaviour within the workplace will justify summary dismissal (that is, dismissal without notice).

Warren Power v Lyndons Pty Ltd T/A Lyndons

[2023] FWC 1060 (5 May 2023)

▪ It was alleged Mr Power had said words “I’ll f### you in the a###” or “s### my d###” towards an employee (The Words).

▪ Mr Power denied using The Words and gave evidence that swearing was common in the workplace.

Warren Power v Lyndons Pty Ltd T/A Lyndons

[2023] FWC 1060 (5 May 2023)

▪ The witnesses were all very clear that the Words were used, that they were used by Mr Power and that they were directed specifically at his colleague.

▪ "Whilst swearing in the workplace may or may not be commonplace, the Words used by [Mr Power] went far beyond simply swearing in the workplace and fall squarely within the definition of serious misconduct as prescribed by the Fair Work Regulations.

▪

"Such conduct in the workplace is simply intolerable, the evidence was clear that it was unwelcome and such conduct opens the [employer] to a failure of its duty to provide a safe place of work for its employees."

Part 3: Express provision relating to sexual harassment in the Fair Work Act 2009 – 6 March 2023

▪ On 6 March 2023, an express prohibition on sexual harassment commenced under the Fair Work Act 2009

▪ A contravention will attract penalties in the same manner as the general protections jurisdiction and the employee will be entitled to seek damages.

▪ An employer will be vicariously liable for the contravening conduct unless it can demonstrate it took all reasonable steps to prevent it.

▪ An aggrieved person, or their industrial association, can make an application to the Fair Work Commission for a “stop sexual harassment order” or request the Commission to otherwise deal with the dispute.

▪ In considering the terms of an order, the Commission must also take into account any other matters that the Commission considers to be relevant to an application for an order to stop sexual harassment.

▪ Without limiting the matters that might be considered in this context, the circumstances of the parties, the history and nature of the work and work relationships and the utility of any orders that might be made would be relevant considerations.

▪ This might include:

• the applicant being on leave from the workplace;

• that the individual(s) involved in the behaviour are no longer in the workplace;

• changes in the work environment;

• initiatives put in place by the employer such as policies and procedures to reduce the risk of sexual harassment;

• any other developments in the workplace;

▪ The aggrieved person will have a period of 24 months after the alleged contravention to file the application, but only in relation to conduct that occurs after 6 March 2023.

▪ If the application is not resolved through conciliation, the parties can consent to arbitration by the FWC. The FWC will be empowered to make orders for compensation, lost remuneration, and/or an order requiring a person to perform any reasonable act, or carry out any reasonable course of conduct, to redress the loss or damage suffered.

▪ If the parties do not consent to arbitration by the FWC, the applicant can make a court application and also seek penalties of up to 60 penalty units.

▪ The amount of compensation which can be claimed by an applicant is unlimited. Additionally, from March 2023, civil penalties of up to $16,500 for individuals and $82,500 for companies can be applied.

▪ The Fair Work Ombudsman is also empowered to prosecute contraventions.

Part 4: Applications and Orders

▪ To apply to the Fair Work Commission to stop sexual harassment at work, a person must be:

• a worker and

• working in a constitutionally covered business and

• still connected to the workplace where the conduct occurred.

▪ The sexual harassment must have occurred when the worker was at work. A worker can be at work even when they’re working away from the work premises.

▪ A worker could be sexually harassed by another worker or by another person when they are at work (for example, by a customer or client of the employer or principal, a supplier of the employer or business or a visitor to the worker’s place of work).

▪ For sexual harassment disputes involving conduct that occurred or began on or after 6 March 2023, an application to deal with a sexual harassment dispute can be made under new Part 3-5A of the Fair Work Act. Part 3-5A allows a person to apply to the Commission for orders to stop sexual harassment in connection with work, and/or for the Commission to start to deal with the sexual harassment dispute (other than by arbitration).

▪ The new sexual harassment provisions and the process for making a sexual harassment dispute application are explained in the Sexual Harassment Disputes Benchbook.

▪ When considering the terms of an order to prevent further sexual harassment at work, the Commission must, to the extent that it is aware, take into account:

• any final or interim outcomes arising out of an investigation into the matter that is being undertaken by another person or body

• any procedures available to the worker to resolve grievances or disputes

• any final or interim outcomes arising out of any procedures available to the worker for resolving grievances or disputes, and

• any matters that the Commission considers relevant.

▪ By taking into account these factors, the Commission can frame the order in a way that has regard to compliance action being taken by the employer or a health and safety regulator or another body, to ensure consistency with those actions.

Part 5: Accessorial/Bystanders

▪ In the context of sexual harassment, a bystander is a person who observes sexual harassment firsthand or hears about it subsequently.

▪ In the workplace, bystanders can include co-workers who are informed of workplace sexual harassment through the ’grapevine’ or are sought out by victims or harassers for support or advice.

▪ Bystanders also include a range of people formally authorised to receive reports of workplace sexual harassment, such as managers, supervisors, human resource employees or harassment contact officers.

▪ VicHealth, The Behavioural Insights Team, and Women Victoria put together a resource framed as the “ladder of active bystanding”, which shows a range of behaviours active bystanders are encouraged to use through bystander initiatives.

▪ Actions higher up the ladder are considered stronger ways of discouraging sexual harassment; these are considered to be more appropriate where the behaviour of the perpetrator is particularly intentional, severe, and explicit

Resources

▪ https://www.ag.gov.au/rights-and-protections/publications/roadmapfor-respect - Commonwealth Government response to AHRC report

▪ Respect@Work website

▪ https://humanrights.gov.au/time-for-respect-2022 -Time for Respect; fifth national survey on sexual harassment in Australian workplaces

▪ https://www.fwc.gov.au/documents/benchbooks/orders-to-stopsexual-harassment-transitional-benchbook.pdf

▪ https://www.fwc.gov.au/documents/consultation/consultation-draftsexual-harassment-disputes-benchbook-2023-03-27.pdf

Changes to the Sex Discrimination Act

Anne McCulloch

1 in 3 have experienced sexual harassment at work in the last 5 years

Sexually suggestive comments or jokes

Intrusive questions about private life or physical appearance

• unlawful sex discrimination

• sexual harassment

• sex-based harassment

• work environments that are hostile on the ground of sex

• victimisation in relation to these matters

• Not ‘of a sexual nature’

• Already a form of sexbased discrimination

• s.17Anti-DiscriminationAct – offend, humiliate on the basis of gender or gender identity

It is unlawful to harass a person on the ground of their sex

Unwelcome

• Not solicited or invited

• No need for victim to say unwelcome

Conduct

• Includes statements to or in the presence of – orally or in writing

‘In this day and age young women should not have to tell their older superiors that they do not want be sent salacious texts during or after working hours, nor have comments of a sexual nature made about them, or be directed towards them in their workplace.’

Demeaning

Sex

A reason

• Characteristic that generally applies or is imputed to a person of that sex

• Not the only reason

• Not the dominant reason

Reasonable Person Test – would have anticipated offence, humiliation or intimidation

The hypothetical reasonable bystander

Other protected attributes of the victim including age, sex, gender identity, disability

Relationship between victim and perpetrator

Any power imbalance

Seriousness of conduct

Repetition

Sex based Harassment Examples

Intrusive personal questions

Inappropriate comments and jokes

Sexist remarks about a person

Displaying images that are sexist or misogynistic

Requesting the person to engage in degrading conduct

Sex

Ben laughs at Jill and says she must have her period because she is always in the toilet and then puts sanitary products all over her desk

Vincent says that Emily should not be a paramedic because she is "feeble and weak". He also regularly tosses medical supplies or equipment at Emily with unnecessary force, which causes her to drop things or fall over, and then jokes that she is "too much of a little girl to do her job properly."

George regularly makes belittling comments to Anna about her appearance in front of clients

"Anna, you've put on some serious kilos, sweetheart" and "couldn't you make a bit more of an effort for the customers?“

George creates a mess and then tells John to "get Anna to clean that upshe's the help around here - it's what women are for after all".

She is "bloody hormonal all the time" and is "constantly hiding in the bathroom"

George also makes inappropriate comments about Anna’s menopausal symptoms

based Harassment Examples

Sex based Harassment – Example George and Anna George and Anna are coworkers of a similar age.

Sex based Harassment – Example Franco and Sharon

Franco is a male student teacher on his is final teaching placement.

Sharon is his supervisor responsible for approving his placement.

Sharon invited Franco out for a drink and he politely declined.

Franco's confidence is undermined by the comments, he can't deliver classes and he stops showing up for work

He “lacks empathy and compassion”.

Hostile Work Environment

Sharon then makes comments about the limits of Franco's natural ability to teach given he is a male

Words and actions negatively affect another employee’s ability to complete work

Sexually crude conversations Sexual Innuendo

Sexually Offensive Jokes

Displaying obscene or pornographic materials

Sexual banter

Sexual Harassment in Employment Wider Reach

‘Worker’ includes interns, volunteers, self employed

Conduct only has to be “in connection with work” not actually at work

Sexually harass or ‘harass on the ground of sex’

Conduct by Third Parties

Clients

Employees

AHRC powers to monitor and assess compliance

December 2023

Union can initiate federal court proceedings

2 years to make claim to AHRC

Ancillary or accessorial liability provisions extended for both Sexual Harassment and SexBased Harassment

Cause Instruct

What else is new?

Duties

Employer

Duty to eliminate psychosocial risks, or if that is not reasonably practicable, minimise them so far as is reasonably practicable

Workers – Employees, Volunteers and Contractors

• take reasonable care for your own psychological and physical health and safety and to not adversely affect the health and safety of other people.

• comply with reasonable health and safety instructions

• cooperate with health and safety policies or procedures

Key WHS Concepts

Psychological Hazard

• A hazard that may cause psychological harm

• Arises from management of work, work environment, plant or behaviours

Psychosocial Risk

• A risk to the health or safety of a worker or other person arising from a psychosocial hazard

Key WHS Concepts (Continued)

Psychological Harm

• Harm that caused mental or emotional trauma or that causes behavioural change or physical symptoms that requires psychological or psychiatric care

• E.g. anxiety, depression, adjustment disorder, PTSD, sleep disorders

• Also physical harm

musculoskeletal injuries, chronic disease or fatigue related injuries

Typical Psychosocial Workplace

Control Measures

Duration, frequency and severity of exposure to hazards

How hazards interact or combine

Design of work – job demands, tasks

Systems of work – how work is managed, organized, supported

Design of workplace – including entering, exiting, welfare facilities

Tips for eliminating sexual harassment

Knowledge and Leadership

No longer just an HR issue

Do leaders know and understand the law, Do they role model it?

Does the firm have clear values and expectations, have they been conveyed?

Do leaders understand the impact of sexual harassment?

Do they know how to respond to inappropriate behaviour or complaints?

Risk Assessment

Speak to employees – one on ones, surveys, team meetings

Look at workplace culture – is there an acceptance of banter?

The physical work environment – are there areas where people work alone, unsupported?

New employees more of a risk/at risk?

Is there a risk from client interaction?

Do people work late at the office?

Do you have a workplace behaviour policy?

Does it not just apply to employees?

Is it up to date – sex-based harassment, hostile workplace, victimisation?

Handling Complaints

Do you have a grievance procedure?

How do people complain, what will happen if they do, what happens if they are complained about?

Provide a range of ways to manage a complaint – informally, formally, anonymously

Guide to self managing a sexual harassment concern

First responder cheat sheet

What will you do if someone wants to remain anonymous?

Communications and Training

Messaging from Leadership

Posters, emails, one on ones, staff meetings, team meetings

Sexual harassment training – yearly updates

Update induction processes

Training about Grievance management

Bystander Prevention Training

Hazards identified

Risks assessed

What you have done

What you are going to do

Not set and forget – how will you review?

Don’t forget consultation