The new Albanese Labor Government has the commenced taking “bold and decisive action” to make workplaces safe and harassment-free.

The Government’s commitment to imposing a positive duty on employers to prevent sexual harassment in the workplace, via an amendment to the Sex Discrimination Act.

But what does that in practice mean for employers? It means that employers will have an obligation to stop sexual harassment before it happens, and be liable if it does happen.

Sex Discrimination Commissioner Kate Jenkins recommended the reform in her Respect@Work report, which Labor has now picked up. The Government will amend the Fair Work Act to:

• explicitly prohibit sexual harassment;
• enable unions or other organisations to bring sex discrimination legal action on behalf of complainants; and
• establish cost protections for complainants.

The changes will improve workplace protections against sexual harassment and improve access to justice for those who experience unlawful sex discrimination.

The Government has also pledged to invest more than $35 million over four years towards Respect@Work implementation, including $24 million to “properly fund” working women’s centres across Australia.

This funding will also enable the Australian Human Rights Commission to establish a one-stop shop and put in place a disclosure process to assist those who have experienced sexual harassment, to hear and confidentially document their historical disclosures.

The funding aims to support the AHRC in identifying practical strategies to strengthen ways to prevent and respond to sexual harassment at work, as well as support those who have experienced it.

The evidence is clear—a safe and harassment-free workplace is also a more productive workplace.

The NT is planning to impose a positive duty on employers to eliminate discrimination, sexual harassment and victimisation, while it also intends to expunge an exemption that permits religious schools to discriminate against LGBTIQ+ teachers.

In an exposure draft of the Anti-Discrimination Amendment Bill, Attorney-General Chansey Paech is proposing to add the positive duty to the Anti Discrimination Act.

Under the additional sections 18A and 18B, “persons must take reasonable and proportionate measures to eliminate discrimination, sexual harassment or victimisation to the greatest extent possible”.

These include the size and nature of the business, its resources, practicability and cost.

Established in 2011, the Model WHS laws comprise the Model WHS Act, the Model WHS Regulations and 24 Model Codes of Practice. The Model WHS laws, implemented in all jurisdictions other than Victoria and Western Australia, do not expressly prohibit sexual harassment.

However, they impose a positive duty on employers to prevent sexual harassment in the context of the broad duty to eliminate or manage hazards and risks to a worker’s health, which includes psychological health and therefore sexual harassment.

In determining whether a measure is reasonable and proportionate, the Act should prescribe the factors that must be considered including, but not limited to:

1. the size of the person’s business or operations
2. the nature and circumstances of the person’s business or operations
3. the person’s resources
4. the person’s business and operational priorities
5. the practicability and the cost of the measures
6. all other relevant facts and circumstances.

Key steps

Some key steps toward creating a healthy and safe work environment include:

• distributing communications from senior leaders that sexual harassment is unlawful and will not be tolerated in the workplace
• setting expectations for senior leaders to model appropriate behaviour and respond swiftly and effectively to sexual harassment complaints
• responding promptly to any concerns raised
• supporting and encouraging bystanders to report any inappropriate or sexist behaviour
• removing offensive, sexually explicit or pornographic materials from the workplace
• ensuring workplace policies prohibiting inappropriate use of technology address sexual harassment
• distributing and displaying posters and pamphlets that explain rights and obligations around sexual harassment
• conducting regular audits to monitor the incidence of sexual harassment and effectiveness of the complaint process.

Develop and implement a sexual harassment policy

A crucial aspect of prevention is the development and implementation of a written workplace policy that makes it clear that sexual harassment is unlawful and will not be tolerated under any circumstances.  Employers might develop a stand-alone policy on workplace sexual harassment or incorporate sexual harassment into a broader policy on workplace harassment.

Provide or facilitate education and training on sexual harassment 

A written policy can only be effective in addressing sexual harassment if it is implemented effectively.  All workforce participants should be made aware of the policy and their rights and obligations in relation to sexual harassment.  Employers should distribute the sexual harassment policy widely and conduct regular information sessions on compliance.  This may be achieved by:

• officially launching the sexual harassment policy at a full staff meeting with endorsement from senior management
• emailing copies of the policy to all staff members and clearly explaining any new responsibilities to staff members that are promoted to management positions
• displaying the policy on the intranet, office noticeboards and in induction manuals for new staff members
• ensuring that the policy is accessible to employees from different cultural backgrounds, employees with disabilities or those working in remote areas
• requiring all staff to sign a copy of the policy acknowledging that they understood the content
• periodically reviewing the policy to ensure it is operating effectively and contains current information (e.g. about the law, contact and complaint officers).