Sexual harassment laws to cover ‘workplace participants’

Analysis

Sexual harassment laws to cover ‘workplace participants’

The NSW Anti-Discrimination Act 1977 is soon to be amended to prohibit sexual harassment by workplace participants.

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The NSW Anti-Discrimination Act 1977is soon to be amended to prohibit sexual harassment by workplace participants.

While sexual harassment has been unlawful in NSW as a form of sex discrimination which has been the subject of case law, the proposed amendments represent a codification of the present laws.

The amendments define ‘workplace participant’ as: an employer or employee, a commission agent or contract worker, a partner, a self-employed person, or a volunteer or unpaid trainee. Under the amendments, all workplace participants must ensure that they do not engage in sexually harassing behaviour at their workplace or when they visit any other workplaces.

‘Sexual harassment’ is defined as an unwelcome sexual advance, request for sexual favours or unwelcome conduct of a sexual nature in circumstances where a reasonable person having regard to all the circumstances would have anticipated the other person would have been offended, humiliated or intimidated.

It is important to note that the amendments will impose a liability on employers for the acts of their employees unless the employer can demonstrate that he or she took all reasonable steps to prevent the agent or employee from contravening the Act.

Furthermore, there is no exclusion for employers who employ less than five employees. Interestingly, the law makers would appear to be leading from the front on this issue. The amendments will make it unlawful for a member of Parliament to harass other members or workplace participants, and vice versa.

In addition, the amendments include the following changes to the 1977 Act:

  • the death of a complainant does not terminate a complaint of discrimination or harassment and the person’s estate may continue the carriage of the complaint and retain any damages awarded; and,
  • exemptions from the operation of the Actmay be granted for a maximum period of 10 years - currently exemptions may only be granted for a maximum period of eight years.

The amending legislation was introduced into the Legislative Council as long ago as 20 November 1996, it was passed by the Parliament in April of this year and assented to on 21 May.

 

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