Employment Law: Sexual Harassment and Discrimination in the Workplace

This document provides an overview of employment laws related to sexual harassment and discrimination in the workplace. It discusses the rights of employees, the liability of employers, and the remedies available for victims. The document also explores relevant legislation, such as the Sex Discrimination Act 1984 and the Anti-discrimination Act 1991. It includes a problem-solving question and references for further reading.

EMPLOYMENT LAW

TABLE OF CONTENTS
PROBLEM SOLVING QUESTION ..............................................................................................1
ISSUE .............................................................................................................................................1
LAWS .............................................................................................................................................1
REFERENCES................................................................................................................................5

PROBLEM SOLVING QUESTION
ISSUE
 In present case Anna Bellucci is female employee of Kingswood Motor Company
holding position as 'acting leading hand'. She started facing discrimination after the
promotion from male workers of assembly line.
 Biased and unfair treatment was also faced from the manager by not taking any action
and colleagues in the group chats by abusing her with offensive comments.
 Can Anna seek actions under the Sex Discrimination Act, 1984 for the sexual harassment
faced by her in the company ?
 Does Anna have any remedies with regard to bullying issue from male members,
manager and other colleagues ?
 The issue is whether employer could be held liable for the acts of employees ?
LAWS Sexual harassment is unlawful in Sex Discrimination Act 1984, that is one among the
four federal laws for anti-discrimination acts. Sexual harassment has stand alone
provisions but is considered part of sex discrimination therefore additionally covered by
general prohibition over direct & indirect discrimination in same legislation.
Sex Discrimination Act 1984
 Section 5A is applicable when individual discriminates against other aggrieved person
on ground of sexual orientation. Section 5B is applicable where the individual discriminates against the other person on
the ground of gender identity.
Sexual harassment Section 28A and 28B
 A person is sexually harassed if person makes unwelcome sexual advances or unwelcome
requests for the sexual favours to person harassed or engages in unwelcome conduct of
sexual nature related to person harassed
 Circumstances where the person regard to all circumstances have anticipated possibility
of person being harassed will be humiliated, offended or intimidated.
 The section provides the act of sexual harassment of employee is unlawful. The fellow
employees harassing employee is unlawful employed under same employer.
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 For considering circumstances where behaviour took place, non exhaustive list is given
for what is to be taken into account under s28A which are
 a) Age, sex, gender identity, sexual orientation, intersex status, religion, marital status,
colour, race or ethnic or national origin or person harassed.
b) relationship between person harasses and person making request or advance or engaged in
conduct.
c) any disability of person harassed
d) any other circumstances The act states single could institute the sexual harassment and there are no tests of the
seriousness.
Offences – Part 4
 Section 94 provides person cannot commit act of victimisation against other person.
 It will attract penalty of 25 units or imprisonment of 3 months in case of natural person
and 100 penalty units in case of body corporate. Subsection 2 provides person to be considered committing act of victimisation against
other person if person threatens or subject other person to detriment on ground of making
complaint under laws.
Anti-discrimination Act 1991 Section 117 of the act provides that person being sexually harassed by other persons may
make a complaint under Chapter 7 of the act against the person sexually harassing.
Personal Liability of Employers
 Organisations or persons covered under sexual harassment provisions relating to SDA
are liable personally for; their own actions of the sexual harassment, acts of victimisation, or instructing, causing
aiding, inducing or permitting the sexual harassment.
Vicarious Liability of the Employers -Sec 133, ADA
 Sex Discrimination Act provides principal or employer including unions is liable for te
act of sexual harassment that is committed by the employees or agents in connection with
duties unless the reasonable actions were taken by principal or employer for preventing
sexual harassment.
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 Reasonable actions must be preventative or active measures. Obligations of proving that
reasonable actions were taken rest with employer. Provisions provide under vicarious liability also held employer liable where phones,
computers, tablets or other means of communication are used for harassing person.
Example: sending messages that have connection with workplace.
Accessory Liability
 Employers and individuals could be held liable under s105 of SDA if they instructed,
caused, aided, induced or permitted individuals to commit unlawful acts.
 Like, manager aware of employee being harassed sexually but does nothing could be held
liable as accessory to harassment. No defence is available for the liability
Applicability of Fair Works Act 2009 – Sect 789FC
 The law is applied for application to FWC order for stopping bullying.
 Worker who believes that he/she is bullied at workplace could apply to FWC for order
under Section 789FF Application has to be accompanies by the fees prescribed under regulations. s
Fair Works Act 2009 – Sect 789 FD
 Section states worker is bullied if individuals or the group of individuals behaves
repeatedly unreasonably towards worker and that creates risk to safety and health. The section is not applicable where reasonable management action is taken at reasonable
time.
Fair Works Act 2009 – Sect 789 FH
 Sec 115 of Work Health & Safety Act 2011 and the corresponding provisions of WHS
laws are not applicable in relation to application under 789FC. If worker applies under s789FC for FWC order to stop worker from getting bullied at
workplace, then s115 of WHS, 2011 and corresponding WHS provisions will be prohibit
proceeding to commence or application being continued or made, under laws related to
bullying. The section removes the prohibition.
General Protections Part 3-1
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 Section 351 of FWA prohibits employer from taking adverse action against the employee
or prospective employee on the basis of colour, sex, age, physical or mental disability,
family, marital status or religion. The subsection of provision for civil remedy
Sexual Harassment Complaints
 There is mandatory conciliations for the anti discrimination complaint, including the
sexual harassment. The complaints under Federal Sex Discrimination are brought to
Australian Human Right Commission (AHRC).
 If complaints could not be conciliated, commission could terminate, once terminated case
could be brought to federal court.
 The time limit for lodging the complaint is six months for the sexual harassment.
 The complaint could be made to Commission.
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REFERENCES
Books and Journals
BLACKHAM, A. and TEMPLE, J., 2020. Intersectional Discrimination in Australia: An
Empirical Critique of the Legal Framework. Sydney Law Review, 293, pp.295-6.
Den, M. and Vorce, D., 2018. Girlie scrutinises discrimination, rape, abortion and
divorce. Alternative Law Journal, 43(3), p.230.
Nataraj, S., 2019. Equality and discrimination law in Australia: an introduction.
Online
Fair Work Act. 2009. [Online]. Available through :
<http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/>.
Anti Discrimination Act. 1991.[Online]. Available through :
<http://classic.austlii.edu.au//au/legis/qld/consol_act/aa1991204/>.
Sex Discrimination Act. 1984. [Online]. Available through :
<http://classic.austlii.edu.au//au/legis/cth/consol_act/sda1984209/>.
Vicarious Liability. 2020. [Online]. Available through :
<https://humanrights.gov.au/our-work/chapter-5-liability-effectively-preventing-and-
responding-sexual-harassment-code-practice>.
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