Outside of the current health crisis, one of the most discussed topics of 2021 has been workplace sexual harassment.  This has been sparked by allegations and investigations of high profile parliamentarians and as a result amendments to current legislation have been considered.  This has led to the Fair Work (Respect at Work) Amendment Bill 2021 being passed by both houses of parliament on the 2^nd September 2021 and currently seeking Royal Assent.  Let’s unpack this Bill along with some new considerations and suggested action for businesses.

Firstly, sexual harassment has been included as a valid reason for terminating an employee.  When it comes to termination, currently under section 387 (a) of the Fair Work Act it states a fair dismissal must have “a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)” must be present.”

The Respect At Work Bill seeks to introduce a new footnote to section 387 stating for the purposes of a valid reason

“The following conduct can amount to a valid reason for the dismissal:

(a) the person sexually harasses another person; and

(b) the person does so in connection with the person’s employment.”

Further to this, the Fair Work Commission will be granted additional powers under a revised Section 789 FC of the Fair Work Act to make any orders it deems reasonable, with the exception of monetary or compensation to prevent a worker from being sexually harassed at work. This is likely to operate similar to the current anti-bullying applications which can be made to the Fair Work Commission.

Finally, it is our expectation that the revisions to the Fair Work Act may be retrospectively applied to past situations of workplace sexual harassment.

So what insights should businesses take out of these changes?  It is clear that following the well publicized stories coming out of Canberra, parliament felt the need to take action to prevent & discourage sexual harassment in the workplace.

It is also clear that Fair Work is providing additional powers to employers to provide a safe workplace by giving them powers to dismiss employees who engage in sexual harassment.

Coupled with the additional powers granted to the Commission, workplace sexual harassment will be a focus of the Commission in 2022 and beyond.

So what should businesses do in response to this legislation?  One of the key considerations of the Commission when it comes to workplace sexual harassment claims is the preventative measures that employers have taken.  From an On Demand HR perspective, one key tenant of prevention is to be able to demonstrate that you have provided your employees adequate training in this area.

This is why all On Demand HR members have access to unlimited online Bullying, Discrimination & Sexual Harassment training which is designed in a way that it can be used to provide evidence that training has been provided in this space in the event of a claim.

Even further to this, we have also designed Social Media Online training as workplace sexual harassment can occur outside the workplace with the most common examples occurring after hours and on social media.

If you would like to have a discussion about a situation in your business or about how you can get access for your employees to our growing library of online training modules, please do not hesitate to reach out to us by visiting ondemandhr.com.au

Thanks very much and looking forward to seeing you in the next update.