The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Legislative Amendment) was passed in Federal Parliament on 2 December 2022.
Some of the industrial relations reforms contained in the Legislative Amendment have already taken effect, while others will not occur for a number of months. Some of the changes that have already taken effect relate to sexual harassment in the workplace, more specifically the duty of employers to prevent this kind of conduct from occurring.
Summary of Recent Changes
As of 6 March 2023, a new section (section 527E) has been inserted into the Fair Work Act 2009 (Cth) (the Act) which provides that employers may be vicariously liable for acts of sexual harassment committed by employees in connection with work.
Due to the Legislative Amendment, the phrase ‘in connection with work’ has now been expanded. Now, any acts of sexual harassment will be expressly prohibited where the other person is either a worker, seeking to become a worker, or conducting a business or undertaking.
Section 527E states that if an employee commits an act of sexual harassment in connection with work, the employer may be equally as liable as if they had also done the act. However, if it can be shown that the employer took all the reasonable steps to prevent this kind of conduct from occurring, then they potentially may not be found liable.
Reasonable steps may include (for example) implementing a company-wide policy prohibiting sexual harassment and providing the appropriate training and procedures for employees to follow.
If employers do not take all the reasonable steps to prevent sexual harassment from occurring in the workplace and if an incident does occur, they run the significant risk of being found liable for this conduct.
Key Takeaway for Employers
With this in mind, it is important that workplace sexual harassment policies and codes of conduct are updated to reflect these recent changes.
It is also important that employers implement appropriate training for employees and provide clear avenues for dealing with a complaint.
If you have any questions regarding workplace sexual harassment policies or codes of conduct, please contact Aaran Johnson or Simon Kumar to discuss how Marsdens can assist your business.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.