The Employment Relations (Extended Time for Personal Grievances for Sexual Harassment) Amendment Bill (“the bill”) is awaiting its third reading in Parliament. If it is passed into law, employers must have sound practices in place to respond to any future personal grievances for sexual harassment.
What is sexual harassment?
The Human Rights Act 1993 defines sexual harassment as sexual behaviour from or by another person during an employee’s work that an employee finds “unwelcome, or offensive and that is repeated or serious enough to have a harmful effect”.
This includes an employer, work colleague or customer making unwelcome requests for sex or sexually suggestive comments, offensive sexual remarks or jokes, sexually offensive images at work, intrusive questions about an employee’s sex life, being regularly hassled for a date and unwelcome touching, patting or pinching.
Length of the extension A personal grievance is a type of formal complaint that an employee might make against their employer or former employer if the matter hasn’t been resolved by the parties discussing it.
Currently, an employee has a window of 90 days to raise a personal grievance, regardless of the nature of the event.
Requesting a time extension requires an employee to establish extenuating circumstances, which can be a high bar to reach. The bill will extend the window to give a person 12 months to lodge a personal grievance for sexual harassment with their employer. The clock starts ticking either from the date on which the alleged act occurred or the date the employee became aware of the alleged act of sexual harassment, whichever is later.
Will it be retrospective?
Once in force, it is unclear whether the bill will be applied retrospectively. In other words, it is not certain whether an employee would be able to raise a new grievance or renew a previous complaint if they believe they have been subject to sexual harassment before the bill’s implementation.
Employers’ obligations
Employers are legally obligated to manage any harm that arises from sexual harassment according to the Health and Safety at Work Act 2015, Employment Relations Act 2000 and the Human Rights Act 1993. Ensure that your policies and procedures include:
• What constitutes sexual harassment and that such behaviour is not tolerated
• The rights of your employees to raise their concerns and how they can do so safely
• The process you will follow to appropriately manage and address complaints.
Identify any potential hazards in the workplace and take preventative steps to reduce the chances of anyone being harassed at your workplace. Hold regular training sessions to communicate what is appropriate and inappropriate behaviour at work, how complaints can be made and to whom as well as what action will be taken if you fall short of the required standards. Conduct surveys with employees to gain awareness of possible issues. Be mindful of situations that may make employees vulnerable, for example, walking through a poorly lit car park or being alone in a building when working late.
As soon as you are made aware of possible inappropriate conduct, take steps to eliminate, isolate or minimise any risk. Ensure you have an internal process or external support in place to respond to complaints and make a record of what was discussed. These should include guided conversations, facilitated meetings, interviews and thorough and fair investigations. Be proactive in gathering evidence in the form of witnesses or CCTV footage, which will assist you to make informed decisions about how to deal with the matter.
All communication should endeavour to be confidential, respectful and give the complainant opportunities for support and engagement. Remember to document any steps you have taken to address concerns of sexual harassment so that you don’t have to try and recollect what happened later. Legally, you must maintain either paper or electronic records for existing and past employees for six years after their employment ends.
Conclusion
Employers must show their commitment to a healthy work environment by fostering a culture that prevents and protects workers from sexual harassment. Putting policies and procedures in place to follow if a complaint is raised is essential to this. Make it a priority to evaluate and refresh your practices so that you can respond accordingly if you receive a complaint about inappropriate behaviour.
