In June 2018, the Sex Discrimination Commissioner, Kate Jenkins, and the then Minister for Women, the Hon Kelly O’Dwyer, announced the National Inquiry into Sexual Harassment in Australian Workplaces.
Following the inquiry, on 5 March 2020, the Australian Human Rights Commission (AHRC) released the Respect@Work: Sexual Harassment National Inquiry Report (2020) (Report).
“Workplace sexual harassment is prevalent and pervasive: it occurs in every industry, in every location, and at every level, in Australian workplaces. Australians, across the country, are suffering the financial, social, emotional, physical, and psychological harm associated with sexual harassment. This is particularly so for women” (Kate Jenkins, Respect@Work: Sexual Harassment National Inquiry Report (2020).
The Report was key in recognising the impact of sexual harassment in Australian workplaces, outlining a strategy to deal with this problem, and issuing 55 recommendations.
The Report:
- Revealed that approximately 1/3 of people who had been in the workforce in the preceding 5 years had experienced sexual harassment.
- Estimated that the cost of sexual harassment in the workplace (in 2018) was $2.6 billion in lost productivity and $0.9 billion in other financial costs.
- Highlighted that both employees and employers found the law around sexual harassment to be complicated and confusing.
Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021
The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (2021 Act) commenced on 11 September 2021.
The 2021 Act:
- Created the ability to seek ‘stop sexual harassment’ orders through the Fair Work Commission;
- Prohibited discrimination, under the Sex Discrimination Act 1984 (SD Act), involving harassment on the grounds of sex;
- Explicitly recognised sexual harassment as a valid reason for dismissal;
- Extended the acceptance period between an alleged incident and lodging a complaint under the SD Act; and
- Extended the application of the SD Act to a wider range of ‘workers’ and ‘persons conducting an undertaking or business (in line with workplace health and safety concepts).
The Act implemented 6 of the 12 Report recommendations for Commonwealth legislative reform.
What is sexual harassment?
Section 28A of the SD Act defines sexual harassment as:
- An unwelcome sexual advance;
- An unwelcome request for sexual favours; or
- Other unwelcome conduct of a sexual nature in relation to another person.
To be sexual harassment, it must be reasonable to expect that there is a possibility that the person being harassed would be offended, humiliated, or intimidated by the behaviour.
What does the new Bill say?
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Bill) was introduced to Parliament on 3 October 2022. The proposed changes include:
- An express prohibition in the SD Act to protect people from hostile workplace environments on the ground of sex;
- A positive duty on employers to take reasonable and proportionate measures to eliminate unlawful discrimination, including sexual harassment, as far as possible;
- Powers for the AHRC to inquire into systemic unlawful discrimination;
- Representative actions to proceed from a Commission conciliation to Court, which is not currently permitted;
- A cost protection provision in the AHRC Act provides greater certainty in relation to the cost of pursuing legal action. A costs neutrality approach is proposed, where, as a default, each party bears their own costs, but the Court has discretion to depart from this position;
- Commonwealth bodies to report against six gender equality indicators; and
- An added object of the SD Act to achieve substantive equality between men and women.
The current government has previously pledged to implement all 55 recommendations, which includes non-legislative measures. The government has described the Bill as critical to “ensuring safer, respectful and more equitable workplaces in Australia”.
What can employers do?
The Report makes suggestions on areas for employers to prevent and respond to sexual harassment in the workplace. Our suggestions below are based on these areas.
Leadership and culture – Strong leadership, which displays respect and inclusivity, will reduce the risk of sexual harassment occurring. While sexual harassment is prevalent across all industries, some industries may be more at risk, particularly male dominated industries, those with a traditional power imbalance, and remote workplaces. It is important to constantly assess workplace culture, in addition to allocating written resources and training. The proposed legislation targets hostile work environment and systemic discrimination.
Knowledge, risk assessment, and transparency – It is important to ensure that, like any other health and safety issue, the risk of sexual harassment is assessed on an ongoing basis. This means that employers should keep up to date with preventative measures and learn from their own and other employers’ mistakes. The AHRC has increased powers to both assist with and investigate sexual harassment matters. It is proposed that there will be a 12-month delay in implementing the positive duty provision, to allow those affected by the changes to increase their understanding and implement change.
Support to victims and reporting – Most victims of sexual harassment in the workplace do not report the issue. It is crucial that employers create a supportive environment which prioritises the victim’s wellbeing and encourages victims to come forward. This not only assists victims but may reduce any economic or reputational costs to the employer. It is important that employers review their complaints and reporting systems to ensure that it encourages and supports victims of harassment.
Policies and compliance – Employers should ensure that they not only have suitable policies and procedures in place but that training is provided on those policies and compliance is consistently enforced at all levels of their organisation.
If you require assistance or guidance in relation to any of the information provided above, HHG Legal Group’s lawyers can provide advice to you and your business to minimise your future risk.
Contact our Employment and Industrial Relations lawyers at (08) 9322 1966 or online form.
