Prohibition on sexual harassment: changes come into effect 6 March 2023

New protections

Part 3-5A of the Amendment Act introduces a number of key changes and fortifies the recent legislative changes introduced by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect@Work Act), which we discussed in Part 3 of this series. The new prohibition now absorbs the previous ‘stop sexual harassment’ jurisdiction of the Fair Work Act 2009 (Cth) (Fair Work Act).

What is the protection: The amendment aims to increase protections from sexual harassment in the workplace by placing obligations on employers to prevent sexual harassment and in respect of how employers must respond to allegations of sexual harassment. Breaches of these provisions may result in claims and exposure to civil penalties.

Critically, this protection operates in conjunction with the Respect@Work Act which places a positive obligation on employers (and all PCBUs) to eliminate sexual harassment in the workplace.

Who is protected: These provisions apply to ‘workers’ as defined by Commonwealth work health and safety legislation. A worker includes employees, contractors, outworkers, apprentices, trainees, work experience students and volunteers.

Who is liable: Employers may be directly liable, but also vicariously liable for the acts of their employees.

What rights does this afford: These amendments establish a new dispute resolution process, allowing the Fair Work Commission (the Commission) to deal with disputes through conciliation or mediation, including accepting joint applications, either by multiple individuals and/or as against multiple alleged perpetrators. Where a dispute cannot be resolved in this way, and the parties agree, the Commission can settle the dispute and make orders, including for compensation. Applicants have a statutory limitation of 24 months after the contravention or last contravention to bring an application to the Commission. Workers still have the choice to pursue their dispute through the Commission, the Australian Human Rights Commission or applicable state and territory anti-discrimination processes.  The regulator, the Fair Work Ombudsman (FWO) has been granted power to investigate (either proactively or in response to a complaint) and bring civil penalty proceedings for breaches of the sexual harassment provisions. It may also issue statutory notices ordering the production of documents, records or the examination of individuals. The FWO also can seek enforcement outcomes such as compliance notices, enforceable undertakings or litigation seeking civil penalties and/or compensation.

What do employers need to do in preparation?

Given the broad remit of persons and workers protected by the sexual harassment provisions introduced by the Amendment Act, organisations should at a minimum take immediate steps to:

• Understand their risk profile in relation to the prevalence or risk of sexual harassment occurring (including conducting risk assessments, where necessary, to identify particularly vulnerable people and update their risk management strategies specific to preventing sexual harassment and responding to sexual harassment allegations)
• Specifically address those risks
• Implement targeted policies, codes of conduct and training, and
• Ensure mechanisms for complaints, investigations and dispute resolution are established and accessible.

Flexibility provisions: changes come into effect on 7 June 2023

Broadening the current scheme

The amendments in respect of requests for flexible work arrangements seek to:

• Expand the circumstances in which an employee may request a flexible work arrangement (now including pregnant employees and where employees, or a member of their immediate family or household, experiences family and domestic violence)
• Require employers to meet with employees to discuss their request for a flexible work arrangement, and
• Require employers to propose an alternative arrangement if the employer intends to refuse the flexible work arrangement request; and introduce a dispute resolution process where the employer and employee cannot agree to the terms of a flexible work arrangement, the employer has refused an employee’s request for a flexible work arrangement, or the employer has not responded to the employee’s request for a flexible work arrangement within 21 days.

The Commission is empowered to deal with a dispute about a flexible work request, including by conciliation, mediation or if necessary mandatory arbitration. Unless exceptional circumstances exist, the Commission is obliged to attempt to resolve the dispute using non-binding methods first, such as conciliation or mediation, before the matter can proceed to arbitration.

How will the process work: If an eligible employee requests a flexible working arrangement, the employer has expanded obligations in managing, and responding to, the request. If an employer refuses a request, the reasons for the refusal need to be provided to the employee in writing. An employer also needs to consider and inform the employee in writing if there are any other changes in working arrangements they would be willing to make to accommodate the employee’s circumstances.

What grounds exist for an employer to refuse a request: The threshold of “reasonable business grounds” and examples of reasonable business grounds on which an employer can refuse a request have not changed. The specific circumstances of the employer, including but not limited to the size and nature of the employer’s enterprise, are relevant to whether an employer has reasonable business grounds to refuse a request.

What do employers need to do in preparation?

Employers should continue to consider requests for flexible working arrangements on a case-by-case basis. Given the 21-day timeframe in which to respond to employee requests, it may now become necessary to have a structured procedure for dealing with these types of requests, including appropriate policies and training.

Further information / assistance regarding the issues raised in this article is available from the authors, Nick Duggal, Partner, Sheridan Landwehr, Special Counsel, Estelle Sarra, Associate, or your usual workplace contact at Moray & Agnew.