Respect@Work and future changes to Australia’s sexual harassment laws

8 April 2021
Brett Feltham, Partner, Sydney Siobhan Mulcahy, Partner, Melbourne Steven Troeth, Partner, Melbourne

The Federal government has today announced that all 55 recommendations contained in the landmark report, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, are either agreed wholly, in part, or in principle, or are noted where they are directed to governments or organisations other than the Federal government.

National Inquiry into Sexual Harassment in Australian Workplaces

The report arose out of the Australian Human Rights Commission’s National Inquiry into Sexual Harassment in Australian Workplaces which included nationwide consultations in 2018 and 2019. The inquiry was commenced against the backdrop of the #MeToo movement and recognition of the prevalence of sexual harassment in Australian and global workplaces, and following the results of the Commission’s fourth national survey in 2018 (see our previous article).

Respect@Work report

The 932 page report of the Australian Human Rights Commission, Respect@Work, was publicly released in March 2020. A copy of the report can be viewed here, along with an easier to digest community guide to the report here.

The Respect@Work report found that while Australia was once at the forefront of tackling sexual harassment globally, it now lags behind other countries in preventing and responding to sexual harassment.

Overwhelmingly, the Commission heard that the current system for addressing workplace sexual harassment in Australia is complex, confusing for victims and employers to understand and navigate, and places a heavy burden on individuals to make a complaint. In that context, most people who experience sexual harassment never report it, fearing the impact that complaining will have on their reputation, career prospects and relationships.

Prevention of sexual harassment

The report makes clear that in order to prevent workplace sexual harassment, initiatives must not only address the drivers of sexual harassment in a workplace context but also in society more broadly. Sexual harassment is a form of gendered violence, and social norms, structures, attitudes and practices that cause or contribute to violence against women are the same factors that enable sexual harassment.

The Commission identified a number of areas that should be prioritised for the primary prevention of sexual harassment, with the recommendation that initial prevention efforts should be focused on:

  • social change strategies in relation to sexual harassment, including a national campaign to increase knowledge and change behaviours that constitute, or enable, sexual harassment;
  • interventions that address sexual harassment in relation to populations at higher risk of experiencing or perpetrating sexual harassment;
  • prevention initiatives that are designed to reach young people;
  • resources on workplace rights for young people;
  • respectful relationships education in schools that includes content on sexual harassment as a form of gender-based violence and recognises that sexual harassment is driven by gender inequality;
  • information and training for staff and students in tertiary education institutions that recognises sexual harassment as a form of gender-based violence and provides information on workplace rights; and
  • guidelines and practical measures to ensure responsible reporting about sexual harassment by the media.

Recommendations and approach

The Commission has proposed a new approach for the government, employers and the community to better prevent and respond to sexual harassment in the workplace.

This new approach is intended to be evidence-based, victim-focused, framed through a gender and intersectional lens, and is based upon existing legal frameworks to avoid duplication, ambiguity or undue burden on employers.

In general terms the Commission has recommended changes to the Sex Discrimination Act 1984 (Cth) (Act) to ensure that:

  • its objects include achieving substantive equality;
  • the definitions of ‘workplace participant’ and ‘workplace’ cover all people in the world of work (including those who are paid, unpaid and self-employed);
  • public servants are covered by the Act – the Federal government has indicated that it will go further by extending coverage to judges and Federal members of parliament;
  • sex-based harassment is expressly prohibited; and
  • creating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex is expressly prohibited.

It was also noted that the Fair Work Act 2009 (Cth) does not expressly prohibit sexual harassment, but it is a matter that can be raised indirectly in matters brought to the Fair Work Commission including as part of general protections claims, the anti-bullying jurisdiction, and unfair dismissal claims. The Australian Human Rights Commission has recommended that the fair work system be reviewed to consider the most effective mechanism for prohibiting workplace sexual harassment.

Key recommendations for employers to be aware of

While all of the Commission’s recommendations are important, employers should be particularly aware of the following recommendations (and the Federal government’s initial response to those recommendations):

Changes to the Act and the powers of the Commission

  • to amend the Act to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible – the Federal government has indicated at this stage that will assess whether such an amendment would create further complexity, uncertainty or duplication in the overarching legal framework;
  • for the Commission to be given the function of assessing and enforcing compliance – this may include providing the Commission with the power to undertake assessments of compliance, to issue compliance notices, to enter into agreements/enforceable undertakings, and to apply to a Court for an order requiring compliance with the duty;
  • for the Commission to have a broad inquiry function to inquire into systemic unlawful discrimination, including systemic sexual harassment. To that end, the Commission should be given powers to require the giving of information, the production of documents, and the examination of witnesses, with penalties applying for non-compliance;
  • to enable a complaint under the Act to be made within 24 months since the alleged unlawful discrimination occurred without risk of being terminated by the Commission – this would allow more historical claims to be considered;

Representative claims

  • to allow unions and other representative groups to bring representative claims to court – the Federal government has noted the existing mechanisms to bring such claims in the Federal courts;

Uniformity across anti-discrimination legislation

  • for the Federal government to work with state and territory governments, to amend state and territory human rights and anti-discrimination legislation with the objective of achieving consistency with the Act (where possible) and without limiting or reducing protections;

Changes to the Fair Work Act and the powers of the Fair Work Commission

  • to amend the unfair dismissal provisions in the Fair Work Act 2009 (Cth) to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal;
  • to introduce a ‘stop sexual harassment order’ equivalent to the ‘stop bullying order’ into the Fair Work Act 2009 (Cth) – noting the existing positive duty on employers under work health and safety legislation, the Federal government has indicated that this will occur by extending the existing anti-bullying jurisdiction;
  • amend the definition of ‘serious misconduct’ in the Fair Work Regulations to include sexual harassment;

NDAs and better reporting

  • for the Commission (with others) to look to develop a practice note or guideline that identifies best practice principles for the use of non-disclosure agreements in workplace sexual harassment matters;
  • the promotion and support of best practice reporting on sexual harassment by the media, including through guidelines that promote the safe, responsible, victim-centred and gender-responsive reporting of sexual harassment, and practical measures that build the knowledge, skills and capacity of media professionals to implement those practices;

Board and corporate governance

  • for the Australian Institute of Company Directors (with others) to develop education and training for board members and company officers on good governance in relation to gender equality and sexual harassment;
  • for the Workplace Gender Equality Agency (with another agency) to consider how good practice indicators for measuring and monitoring sexual harassment prevalence, prevention and response may apply to reporting in relation to sexual harassment under the Workplace Gender Equality Act 2012 (Cth); and
  • for the ASX Corporate Governance Council introduce sexual harassment indicators for ASX-listed entities to report against, under its Corporate Governance Principles and Recommendations. This could include specific mention of sexual harassment in guidance on company codes of conduct and information about measures taken to address sexual harassment, as part of its requirements that listed entities have and disclose a diversity policy and set measurable objectives on diversity.

Next steps 

The implementation of all of these recommendations will take time and will be a complex exercise. In the context of a variety of high profile sexual harassment matters, it is expected however that the Federal government will now be motivated to implement these changes as soon as possible. The Federal government has flagged that it will have a package of legislative changes before parliament for its consideration by the end of June 2021.

 

If you have any queries relating to the subject of this article, please get in touch with Gadens’ Employment Advisory Team.


Authored by:

Brett Feltham, Partner

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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