New sexual harassment regulations: What businesses need to know

Author: Claire Harrison | Managing Director | Harrisons

From 1 September 2024, new regulations have come into effect aimed at preventing sexual harassment and gender-based harassment in the workplace. Here’s what you need to know to stay compliant and protect your employees.

1. Proactive Steps to Eliminate Harassment (Effective Now)

Starting from 1 September 2024, businesses (referred to as PCBUs, which means “Persons Conducting a Business or Undertaking”) are legally required to actively prevent sexual harassment and harassment based on sex or gender.

This means:

• Identifying any risks of harassment in your workplace.
• Taking steps to either eliminate or minimise these risks.
• Considering your employees’ unique characteristics, your workplace environment, and the type of work they do when assessing these risks and implementing control measures.

How is this different from the Psychosocial Hazards Code of Practice? While both aim to protect employees’ mental health and well-being, this new regulation is more specific about preventing sexual and gender-based harassment, not just broader psychosocial risks.

2. Prevention Plans Are Mandatory (From March 2025)

From March 2025, all PCBUs will need to develop and implement a formal prevention plan for managing the risks of sexual harassment and sex or gender-based harassment.

Key points:

• The plan should be reviewed if there’s a complaint, if requested by a Health and Safety Representative, or at least every three years.
• This prevention plan will be a crucial part of ensuring the workplace is safe for everyone.

Cost Protection for Sexual Harassment Claims

In addition to the safety regulations, a new law has been introduced that affects how legal costs are handled in sexual harassment cases.

The Australian Human Rights Commission (Cost Protection) Bill, passed on 19 September 2024, means that individuals who bring forward a sexual harassment or discrimination claim can now recoup their legal costs if they win any part of their case, even if they don’t win all of it.

For employers, this means:

• You may be required to pay the legal costs of the claimant (the person bringing the case) if they win, even if they are only partially successful.
• You cannot recover your own legal costs from the claimant unless the court finds that they acted in bad faith or in a particularly unfair way.

What Should You Do?

As an employer, it’s crucial to:

1. Review your current policies and practices to ensure you are identifying and managing risks related to sexual and gender-based harassment.
2. Develop a prevention plan before March 2025 to stay compliant.
3. Stay aware of the cost protection law changes, as these will have a direct financial impact if any claims are made against your business.