While it is well understood that sexual harassment in the workplace is inappropriate and against the law in Australia, amendments to the Fair Work Act have imposed a positive obligation on employers to take “all reasonable steps” to prevent harassment. If this cannot be proven, the you may be held vicariously liable for sexual harassment committed by an employee or agent in connection with the workplace.
Who is protected?
Under the legislation any person who is a worker, or is seeking to become a worker (i.e. any person applying for a job) is protected from sexual harassment. The term “worker” itself encompasses a broad definition which includes:
- Employees;
- Contractors;
- Subcontractors;
- Outworkers;
- Apprentices;
- Trainees;
- Work experience students; and
- Volunteers.
If any of these categories of people are harassed in the workplace or in connection to their work, and no robust systems are in place to ensure that “all reasonable steps” have been taken to prevent harassment, you may leave yourself open to civil proceedings.
What does “all reasonable steps” mean?
A difficulty in this area is that what is reasonable will depend on a range of factors, including the size of the organisation, the nature of the workforce, the conditions under which work is carried out, and any history of unlawful discrimination or sexual harassment. However, the Court has been clear that the mere existence of a sexual harassment policy or the conduct of training sessions are not sufficient to show that all reasonable steps have been taken.
Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13 has highlighted that the focus of the steps must be on preventative measures which employers take. Further, a key consideration on whether the steps taken by the employer are sufficient is whether or not the steps would actually have an impact on behaviour.
So what can I do?
The message from the Courts is that for employers to avoid liability, they must not only have policies, but ensure that all employees are aware of their content and understand the associated processes. You should make certain that all policies are clearly worded, and that employees understand the terminology, intent and disciplinary processes which will flow from non-compliance.
Rather than a singular training which is accessible as part of an onboarding program, consider developing an education program which is updated regularly and held in person to ensure that any employee’s questions are adequately addressed. Trainings should be broad in focus, and should be held on a regular basis, particularly if workplace policies have changed.
A summary of the key preventative measures that you can take is:
- Conduct periodic risk assessments to review the likelihood of sexual harassment in your workplace, and where there are the highest levels of risk within your business;
- Ensure that you have clear and robust policies in place that clearly show that sexual harassment is prohibited, and conduct regular reviews to ensure that the policies align to the realities of your business;
- Conduct regular, targeted and detailed trainings of expected behaviour in the workplace and the processes which employees can follow if they feel that harassment has taken place; and
- Making sure that you have a comprehensive complaints and investigation process which is clearly outlined and accessible to all employees.
Ultimately, you are in the best position to understand what is necessary, but keep in mind that if it comes to litigation, the Court will not consider that only taking “some reasonable steps” instead of “all reasonable steps” in the context of your business will be enough to limit your liability.
If you require any advice about making changes to your business practices, please contact JFM Law on (02) 9199 8597 or email us to speak to one of our qualified and helpful people.
The information contained in this post is current at the date of editing – 16 November 2023.
