Baker McKenzie partner Kellie-Ann McDade to speak at the Employment Law Masterclass in Melbourne
In March this year, the federal government announced new laws that prohibit workplace sexual harassment under the Fair Work Act.
“Those changes essentially now insert a sexual harassment prohibition in the Fair Work Act that has never been there before,” Kellie-Ann McDade, partner working in Baker McKenzie’s employment practice group, said.
“So it really provides another avenue or forum for employees to make a sexual harassment type claim.”
McDade, who will be speaking at the Employment Law Masterclass in Melbourne, went on to say that while the firm has seen a number of sexual harassment claims made to the Fair Work Commission, there have not been many orders handed down yet.
“Certainly the powers that are now given to the Fair Work Commission to deal with sexual harassment complaints are quite broad,” she said.
“They really could order anything, whether that's a stop sexual harassment type order – a similar order to what we've seen in the workplace bullying avenue previously. But differently to the workplace bullying arena, there is an ability to order compensation too. So I think what we'll see is more employees making claims and seeking compensation for sexual harassment by way of the Fair Work Commission.”
Australia has state and federal discrimination legislation, with employees having the option to choose between those avenues when making a claim around sexual harassment, McDade said.
“Both of those types of claims needed to be made to either the state anti-discrimination tribunal or the federal Australian Human Rights Commission,” she said. “And traditionally, those bodies have been a little slower in dealing with complaints. And so the Fair Work Commission Avenue is probably an area that employees are more familiar with and certainly is a jurisdiction that moves these complaints through the system quite quickly and efficiently.”
The new laws around workplace sexual harassment follow previous changes to the federal Sex Discrimination Act.
“That was amended in November of last year,” McDade said. “Those changes were really out of the… Respect@Work report that came out sometime earlier. And the amendments were part of the recommendations from that report.”
Under the laws, employers have a "positive duty" to take measures to eliminate sex discrimination, sexual harassment and victimisation in the workplace.
HRD Australia is hosting an Employment Law Masterclass at the Stamford Plaza Melbourne on November 30 2023. It’s an opportunity for HR teams to gain insights into changing workforce obligations and connect directly with expert lawyers.
McDade will be hosting a session on positive duty and workplace sexual harassment prevention at the event. She’ll be discussing the recent legislative changes that have strengthened the laws around sexual harassment and discrimination.
McDade believes the new laws around sexual harassment will increase the importance of employers having systems and processes in place that allow employees to raise issues with their either direct managers or their HR department.
“Because if those things are not implemented well, there are now multiple other options for employees externally,” she said. “And so from a business point of view, you'd always want to be proactively dealing with those matters prior to them becoming an external legal claim.”
What HR should do to prevent sexual harassment
HR leaders need to be aware of these changes as there is now a positive duty to ensure sexual harassment is not occurring in the workplace, McDade said.
And for employers who haven’t yet put any processes in place, it’s going to require a commitment from management and leadership as a first step, followed by practical measures on how you ensure that compliance, she added.
“Everything from updating your policies and procedures in these areas to ensure that you're doing enough to comply with these now proactive duties, to training staff,” McDade said. “Not just managers but also staff in respect of what they need to do – both what their obligations are as well as their rights.”
HR teams and business leaders should also ensure they have conducted risk management or risk assessment processes.
“Identifying areas in your business that might be prone to these sorts of issues and putting systems in place to deal with that,” McDade said.
“And then I think the back end is really ensuring that you're monitoring what's occurring in your business. So regular reporting, regular check-ins with staff, certainly that's proactive measures. And of course, part of that would be reactive measures, so appropriately dealing with complaints and issues as and when they arise.”
