Sexual harassment remains prevalent in Australian workplaces. This is despite the fact that we’ve had the federal Sex Discrimination Act making it unlawful since 1984. It is also despite the recent exposure through the global #metoo movement and high profile cases and allegations of sexual harassment involving all kinds of workplaces as well as politicians, judges and celebrities.
Prevalent and preventable
In 2018 the Australian Human Rights Commission in Everyone’s business, their fourth national survey on sexual harassment in Australian workplaces, found almost 2 in 5 women (39%) and just over 1 in 4 men (26%) had experienced sexual harassment in the workplace. And we know, from this and other surveys, that those numbers are worse for younger people, Aboriginal and Torres Strait Islander people, people with a disability and LGBTIQ+ people.
In 2020 the AHRC handed down its highly publicised report Respect@Work from their national inquiry into sexual harassment in Australian workplaces. In her forward, Sex Discrimination and Australian Human Rights Commissioner Kate Jenkins said ‘Workplace sexual harassment is not inevitable. It is not acceptable. It is preventable.’ Respect@Work recommended reform in the often complex Australian sex discrimination regulatory framework and suggested a new model for dealing with sexual harassment that would improve and provide clarity between the anti-discrimination, employment and work health and safety legislative schemes.
In June this year the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 was introduced and it passed through Parliament on 2 September 2021. While there are a number of recommendations in the Respect@Work report which were not included in the Bill – such as introducing a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation in the workplace – the Bill does provide modest but important changes to the
- Fair Work Act 2009 (Cth) (FW Act)
- Sex Discrimination Act 1984 (Cth) (SD Act)
- Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
The legislative amendments
In order to implement several recommendations of Respect@Work, the Bill:
- Extends the complaint lodgement time in the AHRC Act from 6 to 24 months before the President can exercise a discretion to terminate a complaint, allowing complainants to manage the barriers to making a complaint.
- Amends the FW Act so that workers can seek a ‘stop sexual harassment’ order from the Fair Work Commission (which extends the stop bullying regime).
- Amends the SD Act to prohibit harassment on the ground of sex.
- Broadens the scope of protection under the SD Act to include members of parliament. Protections are also extended by defining ‘workers’ and ‘persons conducting a business or undertaking’ so that, independent contractors, volunteers, interns and self-employed persons are covered.
- Clarifies that under the FW Act sexually harassing someone constitutes a valid ground for dismissal. Specifically, a person dismissed for sexual harassment under the SD Act is valid reason under the FW Act’s protections for ‘harsh’ and ‘unjust’ dismissals.
Tips for employers
- build a culture where respectful behaviour is practiced and role-modelled by the leadership team
- continue to educate and (regularly) train their workforce on the harmful impacts of sexual harassment and that such behaviour will not be tolerated
- establish and maintain a culture where people feel safe to come forward and report unwelcome and unlawful conduct.
Employers should review their existing policies and update the obligations and rights within these policies to ensure that
- the broader protections for independent contractors, volunteers, interns and self-employed persons are captured
- all forms of sex-based harassment are covered, for example – verbal put-downs, abusive remarks and marginalising behaviours on the basis of sex or gender (this may overlap with sexual harassment and discrimination)
- procedures for complaint handling and dispute resolution are clearly set out.
If you need assistance with understanding your obligations or reviewing policies, contracts and agreements please contact Taboka Finn on Taboka.Finn@justitia.com.au or Kelly Ralph on Kelly.Ralph@justitia.com.au.
We also welcome the opportunity to discuss our tailored and engaging training on a variety of workplace issues including inappropriate workplace behaviours such as sexual harassment, bullying and discrimination.