This 16 Days of Activism Against Gender Based Violence we want to encourage you to step up to be a workplace activist! There are so many things every worker can do to get the information needed to make work safer and get organised to end gendered violence at work. There are some tips, a checklist and conversation starters at the end of this blog, and links to other topics! Let's get active to end violence.
Due to the efforts of workers in union, workers in Australia now have more protections against sexual harassment in the workplace. Employers now have a legal duty to prevent and eliminate workplace sexual harassment—not just respond when it happens.
Under the Sex Discrimination Act, employers are now legally required to take proactive steps to eliminate sexual harassment and sex-based discrimination in the workplace. This is called the ‘positive duty’. The positive duty applies to:
- Discrimination on the grounds of sex
- Sexual harassment in connection with work
- Sex-based harassment in connection with work
- Conduct creating a workplace environment that is hostile on the grounds of sex
- Related acts of victimisation (for example. being treated worse in your employment after reporting sexual harassment).
This new positive duty for employers to address workplace sexual harassment came into effect in December 2022 due to union women pushing for safer, more equitable workplaces. Every worker has the right to a safe, supportive environment free from harassment or hostility, and it’s the employer’s obligation to take steps, including consulting with workers, to make that happen.
Under the Equal Opportunity Act Victoria, employers also have a positive duty to provide a safe workplace and to take all reasonable steps to prevent sexual harassment at work. This means that positive action should be taken to prevent these behaviours – regardless of whether someone has made a complaint. Sexual harassment is defined as unwelcome sexual behaviour that causes a person to feel offended, humiliated or intimidated, where a reasonable person could have anticipated that reaction in the circumstances. It does not matter what the person intended, and it can be a one-off event.
By improving our understanding of sexual harassment, we can better recognise unsafe behaviours and environments in our workplaces. This is essential as the Australian Human Rights Commission found that 1 in 3 workers have been sexually harassed at work in the past five years. Sexual harassment is a health and safety issue and should be addressed as such.
What the Positive Duty Means for Employers
With the positive duties, employers are required to do more than just react to issues as they arise—they must take proactive steps to prevent harassment before it happens. This duty is a significant shift from how harassment and discrimination have been handled in the past which has typically only required action once a complaint has been made. This gives workers and unions more leverage to demand proactive measures and safer work environments through improved consultation and obligations on employers.
Union Won!
This is a direct result of unions advocating for safer workplaces. Union women in Victoria have also been campaigning to end the misuse of non-disclosure agreements in workplace sexual harassment matters. These agreements silence workers, and allow the cover up of sexual harassment by employers.
After tireless campaigning, the Victorian government this year announced they would limit the use of non-disclosure agreements, and they’re currently considering laws to make this happen. It's a great reminder that when we work together, we can end systems and structures that allow sexual harassment to begin with.
Activist Checklist:
- Can you name some behaviours that might constitute sexual harassment?
- Are there steps that you can think of that could be taken to prevent sexual harassment at your workplace?
- Has your employer consulted with workers and your union about stopping sexual harassment at work?
- Do you know how to report a sexual harassment incident at your workplace if it happened to you or to someone else?
- Do you know if your employer uses non-disclosure agreements to resolve complaints about sexual harassment?
- Did you know you can contact your union for support if you have experienced or witnessed workplace sexual harassment?
Sexual harassment is unlawful - and there are lots of different ways to get support and to take action. You should always speak to your union if you need support.
Read more about the Positive Duty in the Sex Discrimination Act here. Find our more about sexual harassment in the Equal Opportunity Act in Victoria here. The Fair Work Commission also has powers to make orders to stop sexual harassment - more here.
Check out our other 16 Days of Activism - How to be a Workplace Activist Workplace Checklists and Conversation Starters:
Right to family and domestic violence leave
Stopping work-related gender-based violence
Creating safe, well-organised workplaces
Winning gender equal workplaces