On 6 March 2023, the Fair Work Act has been amended to prohibit sexual harassment in connection with work. As part of this legislation there is a legal obligation on employers to take proactive and meaningful action to prevent harassment from occurring in or in connection to the workplace. We talk to Gallagher Senior Consultant, Jacqui Elliott about what this means for businesses and what actions they need to take.
Many organisations take a reactive approach when it comes to sexual harassment claims, responding only after a complaint has been made. The changes in the law now demand businesses proactively prevent situations from occurring in the first place. This proactive approach is known as the positive duty. This positive duty aims to address the systemic causes of sexual harassment as well as discrimination and victimisation in order to promote a safe work environment. In the past, the term safe referred to the prevention of physical injury or trauma in the workplace. It has now evolved to include psychological safety and mental health.
Under the amended laws, the Commission has been granted a higher level of power. It can be engaged directly by an employee to investigate a claim of sexual harassment in the workplace.
If they find that there has been an:
They have the power to impose penalties.
Sexual harassment doesn't just affect those involved, the wider workplace can suffer damages to workplace culture and lower morale. This can lead to lower levels of productivity, increased absenteeism and reputational risks for the organisation. Additionally, considerable time and costs may be incurred in documenting, pursuing, or defending claims related to sexual harassment.
Training and education plays a pivotal role in preventing workplace sexual harassment. By equipping employees with the knowledge to identify unacceptable workplace behaviours, the likelihood of them engaging in inappropriate conduct is reduced. One key aspect of this is being able to identify all types of unacceptable behaviours. While sexual harassment is commonly perceived as a one-on-one issue, the role of bystanders should not be overlooked. For example, if two co-workers willingly engaged in sexually explicit conversation and a colleague entered that common area, that colleague can now be considered a victim of sexual harassment. It is crucial to ensure that all employees are not exposed to inappropriate content at work.
The responsibilities and liabilities associated with sexual harassment extend not only to the business but also to individuals, especially when the Commission becomes involved. Even directors, who are not directly involved in the day-to-day operations of the business, can be held accountable. The reality is that failing to proactively prevent sexual harassment can lead to severe consequences for both the organisation and individuals.
Organisations must prioritise training and educating employees, while clearly establishing their positive duty. Legislation has been in place since March 2023 and it is important businesses implement training as soon as possible to reduce exposure.
Legislation is constantly evolving, particularly concerning psychological safety. Understanding the responsibilities that both businesses and individuals hold is essential to ensure ongoing compliance.
The Commission can already get involved in sexual harassment cases and it's critical for businesses to act quickly. The exposure can be immense, and a business' best protection is prevention through education and training. As well as understanding and staying ahead of changes in legislation, Gallagher can provide training in your workplace so that your leaders and employees will walk away armed with the knowledge and skills to recognise, prevent, and respond to incidents.
Book your Workplace Behaviours Awareness Training today.
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