The new Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (the Act) aims to combat the prevalence of sexual harassment in Australia by clarifying and simplifying sexual harassment laws and encouraging meaningful cultural change in workplaces, as Holding Redlich’s Rachel Drew writes.
To achieve this, the Act introduces some of the recommendations made in the Australian Human Rights Commission (AHRC) report, Respect@Work: A National Inquiry into Sexual Harassment in the Australian Workplace.
School employers have always had a positive obligation to prevent sexual harassment from occurring.
The new legislation makes that clear and creates additional pathways for aggrieved members to seek resolution of sexual harassment complaints.
The major changes in the legislation include:
- “stop sexual harassment orders” available in the Fair Work Commission (FWC), commencing 11 November 2021, creating a relatively fast and simple process for seeking outside intervention in the event a school employer does not respond adequately to a sexual harassment concern;
- section 28AA will be introduced into the Act prohibiting harassment on the ground of sex, which creates a new cause of action;
- compassionate leave for miscarriages;
- sexual harassment is now a “valid reason” for dismissal under the Fair Work Act, where a complaint of sexual harassment is substantiated against a staff member.
Responding to the changes in the school employment
The commencement of the Act requires employers to develop strategies to prevent sexual harassment.
Section 28AA “harassment on the grounds of sex” captures behaviour such as:
- asking intrusive personal questions based on a person’s sex;
- making inappropriate comments and jokes to a person based on their sex; and
- displaying images or materials that are sexist, misogynistic or misandrist.
Under the Act, an employer can be liable if they “cause, instruct, induce, aid or permit” another person to do an unlawful act of discrimination, including harassment on the grounds of sex or sexual harassment.
While overt forms of sexual harassment are easily identified, schools have a duty to address and eliminate risks from more subtle forms of sexual harassment, such as crude language or sexist remarks which can constitute either sexual harassment or harassment on the grounds of sex (which is prohibited under the new section 28AA in the Act).
Schools now have an obligation to manage sexual harassment directed at staff by students, as well as sexual harassment between colleagues.
School staff should insist employers review and critically assess their culture and policies.
For example, how the school disciplinary process addresses student harassment of staff and what consequences are applied to students who engage in sexual remarks.
Reporting procedures
Schools must now ensure reporting of sexual harassment is encouraged.
The AHRC’s 2018 survey found that only 17 per cent of people who experience sexual harassment report it.
As the majority of sexual harassment cases are not reported, schools should not take a lack of reporting at face value, but rather, they should critically reflect on sexual harassment reporting policies and practices.
Any complaint of sexual harassment should be dealt with promptly, and school staff can expect the school to ensure they are protected from victimisation as a result of making a complaint.
Schools have a positive duty to protect school staff
During the development of the Act, a point of contention was whether it should be amended to include a positive duty on employers to take reasonable steps to eliminate sexual harassment in the workplace.
Part of the federal government’s rationale for not introducing a positive duty was because it already exists under the Work Health and Safety legislation.
Under Work Health and Safety legislation, school employers have a positive duty to eliminate risks from the workplace, and that includes the risk of sexual harassment, so far as reasonably practicable.
If eliminating the risk of sexual harassment is not practical, the school must minimise the risk so far as reasonably practical.
In January 2021, SafeWork Australia released a Preventing Workplace Sexual Harassment Guide to assist employers in meeting their obligations under Work Health and Safety legislation.
To satisfy the work health and safety duty, schools must put in place control measures to eliminate or, if not possible, minimise the risk of sexual harassment.
Clear duty on schools to ensure staff are safe from harassment
School employers have always had a duty to ensure staff are safe from sexual harassment in the workplace and that duty has been confirmed by the new legislation.
School employers must work proactively to prevent sex discrimination, sexual harassment and victimisation in the workplace.
The new changes introduce additional protections and clearer pathways for members to seek resolution of sexual harassment complaints.
