Changes to Sexual Harassment rules In the workplace

Sexual harassment is an ongoing workplace issue that continues to plague many Australian businesses, regardless of size or industry. It is an issue that can affect some of Australia’s largest employers, as well as some of the smallest.


Whether you are an employer or an employee, a small business owner or a corporate executive, you are sure to have heard of sexual harassment in the workplace, and with one in six Australian’s having experienced sexual harassment in the workplace at some stage throughout their working careers, chances are you may have even been exposed to it.


As awareness of this issue continues to grow, legislation appears to be catching up, with new rules and significant changes to legislation designed to deal with sexual harassment in the workplace recently coming into force.


We take a look at the changes to sexual harassment rules in the workplace and the effect that these changes are designed to have on both employers and employees.


The changes to workplace sexual harassment rules

Changes to the Sex Discrimination and Fair Work (Respect At Work) Amendment Act 2021 took effect on the 10 September 2021. These changes also resulted in changes to the Fair Work Act 2009 (Cth) and included the introduction of stop sexual harassment orders, a new definition of sexual harassment, in addition to clarifying that sexual harassment can be a valid and legal reason for dismissal.


Stop Sexual Harassment Orders

This change involves an employee having the ability to apply to the Fair Work Commission for a Stop Sexual harassment Order, if they believe they have been sexually harassed in the workplace. This change will enable workers to apply from 11 November 2021 and will ensure continued protection against this behaviour in the workplace.


Definition of Sexual Harassment

Another key change to the workplace sexual harassment rules has been to the definition of sexual harassment itself. This change includes an amendment to the definition of Sexual Harassment in the Fair Work Act, with the definition now being as follows;

A person sexually harasses another person if they:

  • make an unwelcome sexual advance

  • make an unwelcome request for sexual favours

  • engage in other unwelcome conduct of a sexual nature.

In order for an individual to have sexually harassed another person, their actions must also be reasonably believed to be offensive, or to have humiliated or intimidated the other individual.


Sexual Harassment is a valid reason for dismissal

The changes to workplace sexual harassment rules through the Respect at Work Bill also amends section 387 of the Fair Work Act to make it clear that sexual harassment can be a valid reason in determining whether a dismissal was harsh, unjust or unreasonable. While sexual harassment as a valid reason for dismissal is not new and employers will still be required to investigate the conduct and ensure procedural fairness, the change will likely assist employers to defend unfair dismissal claims in the circumstances.


Why were these changes necessary?

Sexual harassment has been an ongoing issue within Australian workplaces for decades, with these changes aimed at stamping out this type of behaviour from the workplace, ensuring that people feel safe when at work, and ensuring a more positive and constructive workplace culture exists within Australia. It is an attempt to change both the culture and the system.


What these changes mean for employers

Changes to sexual harassment rules within the workplace, places a greater responsibility on employers to ensure that sexual harassment is stamped out of their workplaces, and that a greater emphasis is places on creating a healthy, strong, and non-discriminatory workplace culture.


The changes also mean that employers need to review their internal policies and procedures in relation to how they deal with instances of sexual harassment within the workplace, to ensure that their procedures are consistent with the new legislation.


Everyone wins – employers and employees

Whilst some may consider the biggest winner out of the new sexual harassment rules as being the employees, with employers now having a greater level of responsibility, the true winners from the changers are both employers and employees.


Stamping out sexual harassment in the workplace and having a no tolerance and more thorough approach in terms of consequences, will see workplaces becoming safer, friendly, and more productive, with a greater amount of time and energy invested in working as opposed to dealing with issues that should never occur in the first place.


The Respect at Work amendments are a welcome and very much needed alteration to Australia’s workplace legislation, presenting a fresh, positive, and relevant update to what is considered socially acceptable workplace standards today. Whilst the changes are significant. There is no doubt that further changes in the future will also assist Australian workplace culture to greatly improve, working towards a culture where sexual harassment is completely stamped out altogether.


For more information, and to find out how the team at Dreamstone HR can provide HR assistance to your workplace, including implementing sexual harassment policies compliant with the new rules, please contact us on (02) 8320 9320 or info@dreamstonehr.com.au

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