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Amelita Hensman, Associate Partner at Pointon Partners and member of the Pointon Partners employment law team.

Amid recent growing debate over what many have described as a toxic culture for women working in Parliament House, questions are being raised about how other Australian workplaces are handling reports of sexual harassment and assault.

A national survey by the Australian Human Rights Commission in 2018 found 33 per cent of respondents reported experiencing workplace sexual harassment.

Disturbingly, however, the majority did not formally report their experience or seek support or advice, “with many victims believing a formal complaint would be viewed as an overreaction or that it was easier to stay quiet”.

Almost two in five women (39 per cent) and one in four men (26 per cent) reported experiencing sexual harassment in the workplace in the five years prior.

1. What is sexual harassment?

As outlined in Section 92(1) of the Equal Opportunity Act 2010 (the Act), a person sexually harasses another person if he or she:

  • makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
  • engages in any other unwelcome conduct of a sexual nature in relation to the other person in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

Work-related sexual harassment is sexual harassment (as described above) directed at a person, that can happen at work, work related events, or between people sharing the same workplace. Work-related sexual harassment isn’t always obvious, repeated or continuous and can be physical, verbal or written.

It can be a one-off incident and can involve unwanted or unwelcome touching, staring or leering, suggestive comments or jokes, sexually explicit pictures or posters, repeated invitations to go out on dates, requests for sex, intrusive questions about a person’s private life or body, unnecessary contact such as deliberately brushing up against a person, insults or taunts based on sex or gender, sexually explicit physical contact and sexually explicit emails, text messages or social media activity.

Employers, employees and others have specific duties relating to work-related gendered violence (including work-related sexual harassment) under the Occupational Health and Safety Act 2004 (OHS Act) and the Act:

  • Work-related gendered violence is any behaviour, directed at any person, or that affects a person, because of their sex, gender or sexual orientation, or because they do not adhere to socially prescribed gender roles, that creates a risk to health and safety.
  • Work-related gendered violence can also be experienced indirectly. A person may experience gendered violence not targeted specifically at them (such as overhearing a conversation that affects them) or witness violence directed at someone else.
  • Types of work-related gendered violence can range in severity from comments and gestures, through to sexual assault and rape. It can include stalking, intimidation or threats, verbal abuse, ostracism or exclusion, sexually explicit gestures, offensive language and imagery, put downs, innuendo and insinuations, being undermined in your role or position, sexual harassment (as noted above) or sexual assault or rape.

Acts such as indecent exposure, stalking, sexual assault and obscene or threatening communications (for example phone calls, letters, emails, text messages and posts on social networking sites) may also be offences under criminal law and victims may choose to report criminal offences to the police.

4. Employer duties

Under the OHS Act, employers must:

  • Provide and maintain a work environment that is safe and without risk to the health of their employees (including independent contractors), so far as is reasonably practicable.
  • Eliminate risks to health and safety so far as is reasonably practicable. If it is not reasonably practicable to eliminate the risks they must be reduced so far as is reasonably practicable.
  • Provide and maintain safe systems of work, and give employees the necessary information, instruction, training or supervision to do their job safely and without risks to health.

Where there is a risk of work-related sexual harassment causing physical or mental injury, employers have an obligation under the OHS Act to control that risk. This obligation is in addition to the obligation of employers under the Act.

Work-related gendered violence may constitute sexual harassment, unlawful discrimination or victimisation (treating someone adversely because they have made, or may make, a complaint) under the Act.

Under the Act employers have a duty not to engage in discrimination or sexual harassment and to take reasonable steps to eliminate these behaviours.

An individual who discriminates against or sexually harasses another person in the workplace can be held responsible, and therefore legally liable, for their behaviour.

Employers can also be held legally responsible for acts of discrimination or sexual harassment by their employees or agents if they occur in the workplace, or in connection with a person’s employment. This is known as vicarious liability.

Prevention involves:

  • identifying the hazards and assessing the risks;
  • implementing measures to eliminate or control the risks; and
  • reviewing the effectiveness of control measures to ensure they are working, and improving them where needed.

At the very least every business should ensure that they have policies for staff and a complaints procedure in place. In addition it is the responsibility of the employer to ensure that staff have adequate training on sexual harassment and understand the policies and procedures.

Any complaints made by an employee should be treated seriously and handled in accordance with the complaints procedure in a timely manner.  Employers should also review existing policies and procedures periodically to make sure they are up to date and accessible.

An employer that complies with all of the above is more likely to be able to demonstrate they have fulfilled their positive duty under the Act to provide a safe workplace and to take all reasonable steps to prevent sexual harassment at work. Employers that are not proactive also risk serious financial consequences and reputational risk to their business.

If you have any questions or concerns around your workplace and whether you are complying with your duties, please get in touch with us via admin@constructivelegalsolutions.com.au or 1300 632 247 or via our Contact Us page

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