Workplace sexual harassment is not a gender issue, it’s everyone’s — what employers need to know

The Commonwealth Government has recently agreed to or noted all 55 recommendations set out in the Australian Human Rights Commission’s (AHRC) Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report (Respect@Work Report). Each of the recommendations are to be adopted “wholly, in part or in principle”, with the first set of recommendations to be considered before Federal Parliament in June 2021.

In addition to the forthcoming amendments to the Commonwealth legislation, Queensland Premier Annastacia Palaszczuk recently announced a review of Queensland’s industrial relations laws to consider stronger protections for Queensland workers. The review of the Industrial Relations Act Qld 2016 (Qld) is set to investigate industrial protections for the state’s public service workers including the Queensland Industrial Relations Commission being afforded the power to make anti-sexual harassment orders. Following reports on the prevalence of sexual harassment within the Queensland public service, Premier Palaszczuk also announced that the Queensland Government will appoint an equity officer to handle bullying, harassment, and sexual misconduct complaints.

In this article, Partner, Andrew Tobin and Solicitor, John Hickey outline why employers, regardless of whether their duties to staff are governed by the state and federal regime, need to be aware of and meet their obligations. 

• Key takeaways for business owners
• Background
• Commonwealth legislative amendments on sexual harassment laws
• Workplace Sexual Harassment Council

Key takeaways for business owners

Employers must carefully consider the forthcoming Commonwealth legislative amendments to effectively prevent and respond to instances of sexual harassment in the workplace.

There are steps employers can immediately take to prepare for the implementation of these changes from June 2021. 

1. Reviewing existing workplace policies and procedures to ensure employees understand sexual harassment is prohibited and will not be tolerated in the workplace.
2. Implementing training programs for all workers in relation to identifying, responding to and reporting instances of sex discrimination or sexual harassment in the workplace.
3. Building a culture of trust by creating opportunities for employees to raise concerns regarding sexual harassment, without being concerned that they will suffer adverse action or victimisation. This may include appointing authority to an equal employment opportunity officer within the workplace.
4. Developing processes and procedures for addressing reports of historical workplace sexual harassment and having appropriate support systems in place for survivors prior, during and following the making of a report of sexual harassment. This may include providing former and current employees with unrestricted access to employee assistance programs or covering the costs of private counselling for employees.

Responsibility for combatting workplace sexual harassment is everyone’s business and for everyone’s benefit, regardless of gender or sexual orientation. Businesses that embrace and prepare for these legislative changes will be best placed to lead changes to more positive workplace behaviours. 

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Background

Respect@Work Report 

Sexual harassment refers to an unwelcome sexual advance, an unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature in circumstances where a reasonable person would consider that the person harassed would be offended, humiliated or intimidated. It is unlawful for any workplace participant (i.e., an employer, employee, contractor or a partner in a partnership) to engage in sexual harassment with another workplace participant in the workplace. Conduct of a sexual nature includes physical touching, the making of sexually suggestive comments or jokes, and the sending of sexually explicit images via electronic media. In determining whether sexual harassment has taken place, the personal backgrounds and relationship between the parties as well as any other relevant circumstances are considered.

AHRC national survey

The most recent national survey conducted by the AHRC between April and June 2018 confirmed sexual harassment in Australian workplaces is widespread and pervasive, with approximately one in three people experiencing sexual harassment at work in the past five years. The survey also revealed:

• two in five women (39%) and one in four men (26%) have experienced sexual harassment at work in the past five years;
• four out of five people (79%) were sexually harassed by a male harasser;
• 52% of workers who identify as LGBTI, 53% of Aboriginal or Torres Strait Islander workers and 44% of workers with disability were sexually harassed at work in the last five years;
• young people aged between 18 and 29 were more likely than those in other age groups to have experienced workplace sexual harassment in the last five years;
• fewer than one in five people (17%) made a formal report or complaint in relation to workplace sexual harassment;
• almost one in five people who made a formal report or complaint were labelled as a troublemaker, were ostracised, victimised, ignored by colleagues, or resigned;
• in one in five cases, the formal report or complaint brought no consequences for the perpetrator, and where there was some consequence, it was most commonly a verbal warning; and
• while more than one in three people have witnessed or heard about the sexual harassment of another person at their workplace in the last five years, only one in three of those individuals took action to prevent or reduce the harm of this harassment.

National Inquiry into Sexual Harassment in Australian Workplaces 

Following this survey, the National Inquiry into Sexual Harassment in Australian Workplaces(Inquiry) was announced by Australian Sex Discrimination Commissioner Kate Jenkins and the then Minister for Women, Kelly O’Dwyer. 

The purpose of the Inquiry was to address sexual harassment in Australian workplaces, focusing on the nature and pervasiveness of sexual harassment, the drivers of harassment, and the necessary measures to address sexual harassment. The Inquiry was commenced against the backdrop of the #MeToo and #LetHerSpeak movements and recognition of the prevalence of, and immense harm caused by sexual harassment in Australian workplaces.

In delivering the Respect@Work Report on 5 March 2020, Commissioner Jenkins advised that the current legal and regulatory system is no longer fit for purpose and that the new regulatory model is evidence-based, victim focused and framed through a gender and intersectional lens. 

Commissioner Jenkins further stated that “sexual harassment is not a women’s issue: it is a societal issue, which every Australian, and every Australian workplace, can contribute to addressing”.

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Commonwealth legislative amendments on sexual harassment laws

The Respect@Work Report offered a suite of recommendations to improve the legal and regulatory framework relating to sexual harassment in Australia. 

Relevantly, the Respect@Work Report provides for specific amendments to the Fair Work Act 2009 (Cth) (FW Act), the Sex Discrimination Act 1984 (Cth) (SD Act) and the Work Health and Safety Act 2011 (Cth) (WHS Act). 

The key legislative amendments to the FW Act and its associated regulations adopted by the Commonwealth Government wholly or in principle include:

• the definition of serious misconduct in the Fair Work Regulations 2009 (Cth) is to be amended to include an express reference to sexual harassment;
• sexual harassment is to be expressly listed as a valid ground for dismissal for the purposes of an unfair dismissal application; and
• the Fair Work Information Statement is to include additional guidance on sexual harassment (subject to agreement by the Fair Work Ombudsman).

The Commonwealth Government has also accepted wholly or in principle the following recommendations regarding the SD Act and related legislation:

• sex-based workplace harassment and creating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex is to be expressly prohibited;
• any conduct that amounts to victimisation may form the basis of a civil action for unlawful discrimination;
• the current exemptions in relation to state public servants are to be removed (coverage is expected to be extended to include judges and members of parliament); and 
• the time to make an alleged unlawful discrimination claim is extended to 24 months after the alleged incident occurred.

The following recommendations to the WHS Act and its associated instruments have also been approved wholly or in principle: 

• to amend theSafe Work Australia Model Work Health and Safety Regulation to deal specifically with psychological health; and
•  to introduce a code of practice on managing psychological risks which covers sexual harassment in the workplace.

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Workplace Sexual Harassment Council

Further to these amendments, the Commonwealth Government has established the Workplace Sexual Harassment Council (Respect@Work Council) chaired by the Sex Discrimination Commissioner and include representatives from the Fair Work Commission, Fair Work Ombudsman, Safe Work Australia, the Heads of Workplace Safety and Worker’s Compensation authorities and Australian Council of Human Rights authorities. The purpose of the Respect@Work Council is to improve coordination, consistency, and clarity across the key legal and regulatory frameworks in response to sexual harassment. The first meeting of the Council was held on 19 March 2021.

The Commonwealth Government, however, has stopped short of accepting wholly or in-principle several of the recommendations of the Respect@Work Report. Most significantly, the introduction of a positive duty in the SD Act for all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation as far as possible was only noted.

In response to the recommendation, the Commonwealth Government commented that the WHS Act imposes a positive duty on employers to eliminate or manage hazards and risks to a worker’s health. This includes physical health, and therefore captures the potential injuries associated with workplace sexual harassment or assault. Although no positive duty in relation to sexual harassment will be imposed on employers, it is important that employers are proactive in ensuring that the responsibility of dealing with sexual harassment in the workplace does not solely fall on the shoulders of the survivor.

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If you require any further information or clarification, or for assistance with reviewing existing discrimination and harassment policies and processes to ensure that they are legally compliant, please contact our Workplace and Employment team.