Employers Must Take Positive Steps to Prevent Sexual Harassment

The Sex Discrimination Act requires all employers to take all ‘reasonable and proportionate measures’ to eliminate, as far as possible, workplace sexual harassment. Employers need to act.

The Sex Discrimination Act (1984) now requires employers to take all ‘reasonable and proportionate measures’ to eliminate, as far as possible:

workplace sexual harassment, sexual discrimination and sex-based harassment
conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex; and
acts of victimisation.

‘Reasonable and proportionate measures’ have not been defined but they will relate to the size and nature of the business. They have also chosen the words ‘as far as possible’ which has a much tighter employer obligation in comparison to the normal ‘as far as practicable’ requirement. ‘Possible’ can have a much wider interpretation then ‘practicable’ in a workplace setting.

The Australian Human Rights Commission will be given power to closely examine how an employer has fulfilled their new positive duty requirements

In determining what is possible the Australian Human Rights Commission will examine:

The size, nature and circumstances of the business; and
The financial resources and cost of measures to eliminate sexual harassment.

Employers will be audited and assessed on whether they have taken sufficient measures to prevent any instances of sexual harassment at that workplace. This is a prevention power.

The Commission will also be able to give compliance notices for this new positive duty and can seek enforcement of those compliance notices in the courts.

These changes take effect from December 2022.

The level of positive action will vary between workplaces. As a minimum employers should provide basic education to employees at all levels, a formal employer policy position and a mechanism for employees to lodge (and deal with) allegations internally - rather than finding out about an incident via a claim letter from an employee’s solicitor. Please get in touch to determine what you need to do.

Please let me know if you wish to receive the Hunter Employee Relations ‘Employer Guide to Bullying, Harassment & Discrimination in the Workplace’.