As an employer, it is essential that you follow all relevant laws concerning keeping the people at your business safe. In September 2021, changes to the Fair Work Act (FWA) placed a series of new duties on employers, including that you must:
- take reasonable measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible; and
- expressly prohibit conduct that results in a hostile workplace environment on the basis of sex.
The Federal Government has also allocated $15.1 million to the Fair Work Commission (FWC) and Fair Work Ombudsman for enforcement. This article will break down some of the changes that took place and what they mean for your business.
What Are My Obligations and Potential Risks From These New Laws?
Similar to the well-known anti-bullying workplace laws, your employees may make an application to the FWC if you do not comply with your new obligations.
When assessing any applications against your business, the FWC will:
- deal with the dispute within 14 days of the application being made; and
- organise conciliation or mediation between you and your employees.
If the FWC considers your infringement to be serious, they may make a stop sexual harassment order. The FWC is likely to make this order if they believe that an employee has suffered sex discrimination, which will continue unless the order is made. In that case, you may have to make changes to your workplace structure or review any workplace policies to ensure you are complying with all your new obligations.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Additionally, the government has now legislated sexual harassment to fall within the definition of serious misconduct. This means that you may summarily dismiss an employee who sexually harasses someone at your workplace.
How Can I Practically Address These New Obligations in My Workplace?
These new laws require you to manage the risk of sexual harassment within your workplace using the same methods as for other safety risks. This includes:
- risk identification;
- assessment;
- elimination; and
- ongoing reviews of the effectiveness of your policies and controls.
If you cannot demonstrate that you have taken all reasonable steps to prevent sexual harassment, you may be legally liable for any sexual harassment your employees experience at work. You can avoid any legal claims by holding:
- ongoing training for employees to familiarise them with your sexual harassment policies;
- regular check-ins with employees; and
- frequent updates to your policies and procedures to reflect anti-harassment values.
Compassionate Leave for a Miscarriage
Furthermore, you must also provide compassionate leave to your employee if they or their spouse (including de facto partner) has a miscarriage. This provision does not apply to a former spouse or former de facto partner of the employee having a miscarriage. This leave is for two days and is unpaid for casual employees.
Key Takeaways
The new updates to the FWA require you to take measures to control and prevent sexual harassment within your workplace. This includes:
- taking measures to eliminate sexual harassment and sex discrimination, including updating your policies and holding training for employees; and
- expressly prohibiting sexual harassment and other conduct that creates a hostile work environment on the basis of sex.
If you have any questions regarding your workplace obligations, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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