Previously, if an employee wished to raise a personal grievance against their employer, they had to do so within a period of 90 days from the date on which the action(s) complained of occurred or came to the employee’s attention - whichever is the most recent. This has been the position since the Employment Relations Act 2000 (ER Act) was first introduced in 2000.

However, the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act (Amendment Act) carves out an exception to this long-standing rule. The timeframe in which to raise a personal grievance involving allegations of sexual harassment is now 12 months.

The Amendment Act seeks to address the commonly accepted position that it often takes a prolonged period of time for victims of sexual misconduct to process this type of behaviour and feel comfortable enough to raise it, given its inherently aggravated nature and the mental impact it has on victims. The Amendment Act also recognises that these factors can be exacerbated in the employment context, where power imbalances, and a fear of retaliation against speaking out, are often at issue.

What changes does the Amendment Act Introduce

The Amendment Act recently passed its third reading and has received the Royal assent. It came into force on 13 June 2023.

The Amendment Act has made the following changes to the ER Act:

• An employee who wishes to raise a personal grievance for alleged sexual harassment is required to do so within the period of 12 months beginning with the date on which the action(s) complained of occurred or came to the employee’s attention, whichever is later.

• Employers are required to update their employment agreement templates. More specifically, employers are now required to update the mandatory provisions relating to the plain language explanation of the services available to employees for the resolution of employment relationship problems to include reference to the extended timeframe to raise a personal grievance for sexual harassment.

• • This change applies to new collective and individual employment agreements. However, individual employment agreements that were entered into before commencement of the Amendment Act (which occurred on 13 June 2023) do not have to be altered. Similarly, collective employment agreements that were concluded before the commencement of the Amendment Act also do not require alteration.

• The extended timeframe for raising a personal grievance for alleged sexual harassment does not have retrospective application. So, where alleged sexual harassment occurred, or came to the attention of the employee, prior to 13 June 2023, then the extended 12-month timeframe will not apply.

What are employer's legal obligations in relation to sexual harassment?

The push by the Amendment Act to recognise the particular nature and impacts of sexual harassment comes at a time where we are seeing an increasing willingness by WorkSafe, as with its Australian counterpart, to investigate instances of mental and psychosocial workplace harm.

Overall, this legislative and regulatory focus on mental harm (acknowledging sexual harassment can be physical, too) provides a timely reminder that employers need to take allegations of sexual harassment seriously and respond to them appropriately.

So, what are employers’ legal obligations when it comes to sexual harassment?

The ER Act contains a broad definition of sexual harassment, ranging from express or implied promises of preferential treatment in exchange for some form of sexual activity, to the use of language of a sexual nature. The ER Act’s definition also requires the behavior to be unwanted or offensive and have a detrimental effect on the employment, job performance, or job satisfaction of the employee-in-question.

Where an employee raises this kind of behavior, their employer is under a statutory duty to undertake an investigation into the complaint. If, at the conclusion of that investigation, the employer finds that the alleged behavior did in fact occur, it is required to take whatever steps practicable to prevent any repetition of that behavior.  This may often include initiating a disciplinary process against the employee who carried out the sexual harassment.

If an employer fails to take practicable steps to prevent repetition of sexual harassment, then the employee in question may have grounds to raise a personal grievance.

The Health and Safety at Work Act 2015 (HSW Act) also requires employers to ensure, so far as is reasonably practicable, the health and safety their workers and makes it clear that ‘health’ includes both physical and mental. Therefore, employers’ obligations under the HSW Act extend to taking reasonably practicable steps to eliminate, or otherwise minimise, the risk of physical and mental harm arising out sexual harassment.

In summary, employers have an obligation to take practicable steps to ensure their workplace is free from sexual harassment and, in the event that such behaviour does occur, thoroughly investigate it. Failure to do so may provide an employee with grounds for a personal grievance and expose employers to liability under the HSW Act, which can be significant.

How can employees meet their legal obligations?

The best thing that employers can do to meet their legal obligations in relation to sexual harassment is to be proactive. This includes making sure robust systems and processes are in place to limit the risk of sexual harassment occurring in the first place, and to respond to this type of behaviour in the event that it does occur.

At a minimum, employers should have in place a bullying and harassment policy that sets out firm behavioural expectations for staff, as well as a complaints procedure that provides a clear pathway for staff to report any incidents of inappropriate behaviour. We can assist with drafting these sorts of policies.

Employers should also ensure that managerial staff have been adequately trained to respond to and handle complaints of sexual harassment. When it comes to dealing with complaints of sexual harassment, it’s prudent to consider whether it is appropriate to bring in external training providers to educate staff on their responsibilities and obligations.

If, despite having taken proactive measures, sexual harassment occurs in the workplace, employers should take prompt steps to address the matter and obtain legal advice in order to ensure they are fulfilling their legal obligations.