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A “new era of accountability” for employers – Sexual harassment prevention is YOUR responsibility as an employer

As much as many assume that most people meet online these days, the reality is that more people meet their spouse in the workplace than on an app. According to Forbes Magazine, 43% of people who date a colleague end up marrying them. There is nothing intrinsically wrong with either dating a co-worker or respectively asking a co-worker out on a date (provided that you are of equal status in the organisation).

Nevertheless, starting from today, 12 December 2023, a new positive duty comes into effect imposing legal responsibility on employers for failing to prevent sexual harassment and discrimination at work.

This means that employers must actively work to eliminate negative behaviour, with the Australian Human Rights Commission (AHRC) receiving new powers to enforce compliance with the duty.

The purpose of this duty is to give employers a greater and more pro-active role in keeping Australian workplaces safe, inclusive, and respectful.

Sex Discrimination Commissioner, Dr Anna Cody, says that “Organisations and businesses are now required to focus on actively preventing unlawful conduct connected to work, rather than responding only after it happens”.

As the holiday period approaches this positive duty extends to all work contexts which includes Christmas parties and any end-of-year celebrations. Christmas parties offer a chance for colleagues to connect with each other in a context outside of the office, however, they can often be the setting for sexual harassment and discrimination.

As previously written in our article, ‘Sleigh Down the Law’, below are some tips that employers can utilize to protect their employees and minimize their liability:

  • Ensure that alcohol is served responsibly. Whilst there is no need to ban alcohol completely, it is important that employers ensure that adequate steps are taken to prevent potential anti-social behaviour. The Fair Work Commission in McDaid v Future and Communication Pty Ltd [2016] FWC 343 found that employers can be liable for the drunk behaviour of employees.
  • Designate someone to supervise conduct and prevent incidents before they happen.  This does not have to be the ‘fun police’, it could be as simple as appointing a sober senior staff member to watch out for safety hazards such as wet floors and broken glass.
  • Educate the team in meetings. Remind your employees before the event that any codes of conduct and standards of behaviour that would be expected in the office are expected at the Christmas party. It is important to explain to employees that just because the event is outside of normal work hours and away from the office, that the Christmas party is still an extension of the workplace.
  • Set a start and finish time to your Christmas party. Communicate to employees that any events occurring before or after the official event are not endorsed by the company.
  • Explaining to all managers and senior employees that there is a positive obligation to be pro-active in preventing harassment and discrimination.

Employers need to take the necessary steps to ensure compliance with the new positive duty now and in the future. If your company has been accused of permitting harassment, please call us now at (03) 9585 6455 or email

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