Harassment | Discrimination & Bullying | Employment Law

This article provides detailed insights into workplace harassment, focusing on the Secure Jobs, Better Pay reforms, Fair Work Commission powers, and effective approaches to prevent and address harassment.

Sexual harassment in the workplace is a grave issue, encompassing any form of unwanted and unwelcome attention of a sexual nature. This can manifest in various ways, from physical interactions to verbal communication. It includes behaviours such as indecent assault, inappropriate physical contact, and the display of offensive materials. Verbal forms of sexual harassment can involve the use of offensive language, making sexually provocative suggestions, or sending unwelcome communications like phone calls or emails.

The perception of the recipient is critical in determining whether an act constitutes sexual harassment. It is the experience and feelings of the victim that define the nature of the behavior, not the intention of the perpetrator. This subjective aspect means that if the victim feels demeaned, humiliated, or threatened, the behaviour could be classified as sexual harassment.

Sexual Harassment in the Workplace

Every worker is entitled to a safe and respectful work environment, free from sexual harassment. This protection is extended to employees, potential employees, and employers alike. The law safeguards individuals from sexual harassment in all work-related contexts.

Sexual harassment in the workplace is broadly defined to include any unwelcome sexual advances, requests for sexual favours, or other conduct of a sexual nature that makes a person feel uncomfortable or unsafe. This definition encompasses a wide range of behaviours, emphasising the importance of maintaining a professional and respectful work environment.

Criteria for Sexual Harassment

The legal criteria for behaviour to be classified as sexual harassment centers on the expected response of a reasonable person. If it is reasonable to anticipate that a person would feel offended, humiliated, or intimidated by the actions in question, the behaviour may be considered sexual harassment. This objective standard assesses the situation from the perspective of a reasonable person in similar circumstances.

The intention behind the alleged harasser's actions is secondary to the impact of their behaviour. Even if the harasser did not intend to offend or intimidate, their actions could still be deemed as sexual harassment if they are perceived as such by the victim or a reasonable person.

The Seriousness of Sexual Harassment

Sexual harassment does not need to be a repetitive or ongoing pattern of behaviour; even a single incident can constitute harassment. This makes it imperative for employers and employees to understand and recognize the seriousness of any form of sexual misconduct in the workplace. In many cases, sexual harassment can be considered serious misconduct, providing valid grounds for dismissal. Furthermore, depending on the severity and nature of the incident, sexual harassment can escalate to a criminal offense, leading to legal action by either the employer or the victim.

Examples of Workplace Sexual Harassment

Sexual harassment in the workplace can manifest in various forms, each potentially damaging to the work environment and individual well-being. Common examples include:

  1. Physical Contact: Unwelcome touching, brushing against someone in an inappropriate manner.
  2. Visual Harassment: Staring, leering, or displaying sexually explicit pictures or posters that create an uncomfortable work environment.
  3. Verbal Harassment: Making sexually suggestive comments or jokes, often intended to embarrass or demean the recipient.
  4. Unwanted Advances: Inappropriate invitations for dates or romantic encounters, especially when they persist despite being declined.
  5. Intrusive Behaviour: Questioning or commenting on a person's sex life, body, or appearance in a degrading manner.
  6. Electronic Communication: Sending sexually explicit emails or text messages, contributing to a hostile work atmosphere.
  7. Insults and Taunts: Using language or gestures of a sexual nature to insult or taunt a coworker.

These behaviours, whether isolated incidents or part of a pattern, can constitute sexual harassment and contribute to a toxic workplace environment.

Dealing with Sexual Harassment in Your Business

Addressing sexual harassment requires a proactive approach. Employers are encouraged to seek guidance on creating policies, training staff, and establishing reporting mechanisms to effectively manage these issues. Resources such as free guides offer tips, tools, and advice for handling sexual harassment in the workplace.

Is Sexual Harassment a Criminal Offence?

In Australian law, sexual harassment is not only a violation of workplace norms but can also be a criminal offense. This is particularly the case when the behaviour is severe enough that a reasonable person would anticipate it causing offense, humiliation, or intimidation. This distinction is crucial, as it separates harassment from mutual attraction or consensual behaviour. Under the Sex Discrimination Act, sexual harassment is unlawful in various public spheres, including employment, and perpetrators can face criminal charges.

Protection from Sexual Harassment in the Workplace

Sexual harassment can extend beyond individual acts to encompass a work environment that is sexually charged or hostile. In these cases, the conduct may not be directed at a specific individual but still contributes to an unsafe and uncomfortable workplace. Employers bear a significant responsibility in these situations and can be held liable for sexual harassment perpetrated by their employees – a concept known as 'vicarious liability'. Employers must demonstrate that they have taken all reasonable steps to prevent sexual harassment to avoid this liability.

Protections under the Fair Work Act (2009)

The Fair Work Act (2009) provides a legal framework for addressing workplace sexual harassment in Australia. This Act stipulates that an individual or company may be liable for acts of sexual harassment committed in connection with their business. It covers a wide range of workers, including employees, contractors, apprentices, interns, and volunteers. The Act, along with other Australian laws, provides comprehensive protection against sexual harassment, ensuring a safe and respectful work environment for all.

Secure Jobs, Better Pay Reforms

The introduction of the Secure Jobs, Better Pay reforms marks a significant development in workplace rights in Australia. Effective from 6 March 2023, these reforms have amended the Fair Work Act to extend the prohibitions against work-related sexual harassment to a broader range of people. This expanded protection now includes:

  • Workers such as employees, contractors, work experience students, and volunteers.
  • Future workers, including candidates in interviewing or trial periods.
  • Individuals conducting or undertaking a business.

It's important to note that these protections are not retroactive and apply only to incidents of sexual harassment occurring after 6 March 2023. Under this revised legislation, liability for sexual harassment can extend to businesses or organizations unless they can demonstrate that they took all reasonable steps to prevent such conduct.

New Fair Work Commission Powers

With the amendments to the Fair Work Act, the Fair Work Commission has been empowered with greater authority to address issues of workplace sexual harassment. Beyond its existing powers to issue 'stop sexual harassment orders,' the Commission can now engage in:

  • Conciliation and mediation to resolve disputes.
  • Making recommendations or expressing opinions on cases.
  • Arbitration for unresolved disputes, subject to agreement by all parties involved. In such cases, the Commission's orders can include compensation, lost wages, or actions to remedy any loss or damage suffered.

Individuals or groups alleging sexual harassment, as well as industrial associations like unions, can submit applications to the Commission for resolution.

Racial Harassment

Racial harassment, similar in gravity to sexual harassment, involves unwanted behaviour based on race, ethnicity, or national origin. This can manifest as:

  • Verbal abuse or derogatory comments.
  • Exclusion from standard workplace activities.
  • Physical aggression, racist graffiti, or incitement of others to harass.
  • Offensive remarks, jokes, or name-calling based on race.

The perception of the victim is crucial in defining racial harassment. Employers have a legal responsibility under federal and state anti-discrimination laws, as well as the Fair Work Act, to prevent racial harassment, ensuring a respectful and inclusive workplace.

Making a Workplace Harassment Complaint

Victims of workplace harassment have multiple avenues to lodge complaints:

  • Reporting the incident internally to managers or senior staff.
  • Applying to the Fair Work Commission for resolution.
  • Lodging a complaint with government bodies like the Australian Human Rights Commission.

In certain cases, harassment can constitute a criminal offense and should be reported to the police.

Managing Harassment

Proactive measures by business owners are key to preventing workplace harassment:

  • Ensuring a safe physical and online working environment.
  • Offering training and support to emphasise the importance of preventing harassment.
  • Encouraging timely reporting of incidents and practicing early intervention.
  • Establishing a clear policy outlining complaint resolution processes and preventing the breakdown of employment relationships.

It's essential for employers to stay informed about the evolving landscape of anti-discrimination, health and safety, and bullying laws.

Conclusion and Call to Action

Navigating the complexities of workplace harassment requires continuous vigilance and a proactive approach. For expert advice and support, employers can contact Employment Compass' Advice Line for guidance in managing these challenging situations.

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