Let’s just come out and say it: sexual harassment, in any shape or form, is completely unacceptable. It doesn’t matter if it’s on the street, in a bar, at home, or in the workplace; everyone has the right to be safe and free from harassment and bullying.
But the statistics in Australia prove we’ve still got a long way to go, with the Australian Human Rights Commission’s 2022 national survey finding 1 in 3 people experienced workplace sexual harassment in the previous 5 years (and almost 1 in 5 in the past year).
Now, under changes to the Fair Work Act that took effect on 6 March 2023, sexual harassment in the workplace or in connection with work, is prohibited. The expanded protections cover workers (including future workers) and people conducting a business e.g. self-employed people. What's more, if a worker commits sexual harassment, the employer or organisation can now be liable unless they can prove that they took all reasonable steps to prevent it.
So it is essential for all Australian businesses to take sexual harassment very seriously and to do all they can to create a safe working environment for their employees and other stakeholders.
We’ve created this blog post to help understand and prevent sexual harassment, your legal obligations as an employer or business owner, and how to protect and support every person in your workforce.
What is sexual harassment?
The Australian Human Rights Commission defines sexual harassment as “any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated.”
The Sex Discrimination Act 1984 further defines sexual harassment as when a person makes an unwelcome sexual advance, an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature in relation to the person harassed.
Sexual harassment doesn’t have to be explicit; it can be subtle or implied, but it is crucial to understand that the perpetrator’s intentions are irrelevant to whether their behaviour caused harm to the victim.
Despite these clear definitions, what people consider sexual harassment may differ, which can make reporting difficult in some cases. However, all organisations have a duty to prevent sexual harassment, provide a safe environment for their employees, and to address any instances of unacceptable behaviour.
What employers should do
Legal obligations
There are several pieces of legislation that cover employers’ obligations:
1. The Fair Work Act
As mentioned, amendments to the act mean sexual harassment in the workplace is prohibited. This protection applies to workers including employees, contractors, work experience students and volunteers, future workers (so, the recruitment process), and people conducting a business or undertaking.
A person or company can be liable for sexual harassment committed by an employee (or agent in connection with work), unless they can prove that they took all reasonable steps to prevent it.
The Fair Work Commission also has expanded powers to deal with sexual harassment complaints and disputes, including the power to arbitrate disputes.
Find out more at fairwork.gov.au.
2. The Sex Discrimination Act
Sexual harassment is unlawful in employment situations, educational institutions, and the provision of goods, services and accommodation. While the person who sexually harasses is primarily responsible under the Act, employers and others can be held responsible for sexual harassment committed by their employees or agents.
3. Work Health and Safety laws
Anyone conducting a business or undertaking is required to eliminate or minimise the risk of sexual harassment in the workplace, so far as is reasonably practicable. Penalties for failing to meet these duties include fines and, potentially, jail terms.
Find out more at Safe Work Australia.
Zero tolerance policy
Sexual harassment is traumatic and known to cause of physical and psychological harm, so permitting or overlooking it puts your workers and business at real risk.
Aside from the obvious legal considerations, not doing anything about it or not responding appropriately could lead people to think there is a wider culture of permissiveness, which can seriously affect employee morale and productivity, damage your reputation, and can lead to absenteeism, resignations, and discrimination claims.
Assess and minimise risks
Part of your work health and safety obligations is to assess and mitigate, as far as is reasonably practicable, the risks arising from sexual harassment.
Certain factors can put workers at greater risk of sexual harassment, including:
- Having low worker diversity - e.g. a male-dominated workforce.
- Many young workers.
- Workers doing isolated or repetitive work.
- Power imbalances - e.g. between managers and workers, or customers and workers).
- Tolerating or encouraging alcohol consumption at work or at work functions.
Look to build a clear picture of your team and what is happening on the front line using a variety of indicators and assessments, e.g. rates of absenteeism or resignations, discussions with your health and safety rep, conducting exit interviews. Don’t overlook any digital or online environments.
If you identify risks, then work with your people on actions to eliminate or minimise them. External assistance from trained professionals could really help.
Have systems in place
Even if you don’t think sexual harassment is happening, or you haven’t found evidence of it, you should still have systems in place to deal with it.
That means creating written policies and guides that clearly define what sexual harassment is, how employees can report it (whether they experience it or witness it), the process for dealing with incidents (as with any incidents of misconduct or serious misconduct), what support is available to employees, and the potential consequences for perpetrators (if an investigation upholds concerns of harassment, this could mean disciplinary action up to and including termination of employment).
Make these living documents by keeping them up-to-date and making sure all employees read and understand them.
Respect@Work has resources to help prevent and address workplace sexual harassment.
Respond early and consistently
As with any concern or problem, early identification, reporting, and response means incidents and issues are more likely to be resolved rather than being allowed to worsen.
Workers need to have the confidence and support to speak up without fear of inaction or retaliation, so they raise concerns rather than waiting until the behaviour gets to such a level that they need to make a formal complaint. By then, their (and their co-workers’) wellbeing may be so affected, they are no longer effective or want to continue in the job.
Provide support and training
Sexual harassment can be hard to identify and talk about, so ensure all your people are able to recognise it and know what to do if they experience or see it. This includes knowing where to go for resources and support.
Provide prevention training to help all team members spot problematic behaviour early and to effectively deal with it, such as learning about active bystanding techniques.
Ensure your organisation provides support to individuals experiencing harassment. If you don’t have an Employee Assistance Programme, you should consider it.
Bake it in
Your workplace environment and company culture can play a significant role in changing behaviour and preventing sexual harassment. There are many parts required to make up the whole, so look at a wide range of actions from raising awareness of the problem (and how it can be changed) to increasing diversity in your team and empowering all workers.
Managers and leaders need to walk the walk and model appropriate behaviour. Hiring and onboarding practices need to clearly articulate what is expected of employees and what isn’t acceptable. Staff wellbeing needs to be a realistic and ongoing priority, not just a box-ticking exercise.
