Sexual harassment and discrimination in the workplace are serious issues that can have a devastating impact on employees. These behaviours are not only morally reprehensible, but they also violate the law. As such, employers have a legal obligation to prevent and address sexual harassment and discrimination in the workplace.

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The Prohibitions of the Fair Work Act

The Fair Work Act, which is Australia's primary legislation governing employment relations, prohibits employers from taking any adverse action against an employee because they have exercised a workplace right or made a complaint or inquiry about their employment. This means that employers cannot retaliate against employees for reporting sexual harassment or discrimination in the workplace.

In addition, under the Fair Work Act, it is unlawful for an employer to discriminate against an employee based on their sex, race, age, disability, sexual orientation, gender identity or intersex status. This includes both direct and indirect discrimination.

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Direct discrimination occurs when an employer treats an employee less favourably because of a protected attribute such as their sex or race. Indirect discrimination occurs when an employer imposes a requirement or condition that has a negative impact on employees with a particular protected attribute, even if it appears to be neutral on its face.

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Changes to the Sex Discrimination Act

In 2021, the Australian government made significant changes to the Sex Discrimination Act in order to provide greater protection against sexual harassment and discrimination in the workplace. These changes include a clearer definition of sexual harassment, which now includes both physical and verbal conduct that is unwelcome, unwanted or offensive.

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In addition, the changes also expand liability for employers regarding third-party harassment. This means that employers can now be held accountable for instances of sexual harassment that occur between employees or between an employee and a customer, client or contractor of the business.

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Employer Obligations

Under these new changes, employers are now expected to have robust policies and procedures in place to prevent and address sexual harassment and discrimination in the workplace. This includes implementing training programs for employees on appropriate workplace behaviour, as well as having clear reporting processes for incidents of harassment or discrimination.

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Employers also have a legal obligation under the Fair Work Act to provide a safe workplace for their employees, which includes taking measures to prevent and address sexual harassment and discrimination. Failure to do so can result in significant penalties for employers.

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Creating an Inclusive and Safe Workplace

It is important for employers to not only have policies and procedures in place, but also actively promote a culture of respect and inclusivity in the workplace. This can include promoting diversity and inclusion initiatives, supporting victims of harassment or discrimination, and creating a zero-tolerance policy for such behaviours.

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Employers should also regularly review and update their policies to ensure they are in line with current laws and best practices. This not only shows a commitment to creating a safe workplace, but also helps prevent future incidents of sexual harassment and discrimination.

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Providing Support for Victims

In addition to preventative measures, employers also have a responsibility to support victims of sexual harassment and discrimination. This can include providing access to resources such as counselling or legal advice, as well as offering flexible work arrangements if needed.

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Employers should also take steps to protect the victim from further harm, which may include removing them from the situation or providing alternative work arrangements. It is important for employers to handle these situations sensitively and confidentially, while also ensuring the safety and well-being of the victim.

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Understanding Legal Liability

Recent changes to the Sex Discrimination Act have expanded liability for employers in cases of third-party harassment. This means that employers can now be held accountable if they fail to take reasonable steps to prevent or address sexual harassment by clients, customers, or other third-parties in the workplace. This highlights the importance of having robust policies and procedures in place to prevent and respond to all forms of sexual harassment.

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Additionally, under the Fair Work Act, employers have a legal obligation to provide a safe working environment for their employees. This includes taking reasonable steps to prevent sexual harassment and discrimination in the workplace. If an employer is found to have breached these obligations, they may face legal consequences such as fines or compensation payments.

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In conclusion, employers in Australia have a legal and ethical responsibility to prevent and address sexual harassment and discrimination in the workplace. This not only aligns with current laws and best practices, but also creates a safe and inclusive work environment for all employees. By establishing robust policies and procedures, offering support to victims, and taking proactive measures to prevent harassment, employers can create a culture of respect and equality in their workplaces.  It is essential for employers to stay updated on relevant laws and continually review and improve their policies to ensure a safe workplace for all. Let us strive towards building a society where everyone feels valued, respected, and free from harassment and discrimination.

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If you have any inquiries or need further clarification regarding your legal obligations as an employer, please don't hesitate to get in touch with us. Our team of experienced lawyers is fully prepared to offer you comprehensive advice that is tailored to your specific circumstances. We are dedicated to supporting you in creating an inclusive and harassment-free workplace environment.