Respect@Work Final Report Addressing Workplace Sexual Harassment Released

On 5 March 2020, Sex Discrimination Commissioner Kate Jenkins (“the Commissioner”) released Respect@Work (“the final report”), the Australian Human Rights Commission’s (“the Commission”) report of the National Inquiry into Sexual Harassment in Australian Workplaces (“the National Inquiry”).

The National Inquiry was first announced by the Commissioner on 20 June 2018. It was to investigate sexual harassment in the workplace, and make recommendations regarding:

• Its prevalence, nature, and reporting in workplaces
• The role of technology in sexual harassment today
• The driving factors, including risk factors across different groups
• The current legal framework
• Existing measures
• Impact on individuals and businesses

This article will focus on the current legislative framework and the Commission’s recommendations for an improved legislative system.

Current Legislative Protections against Sexual Harassment in the Workplace

Within Australia, laws prohibiting sexual harassment exist on the federal, state, and territory level. These laws can be divided into three key legal frameworks:

• Anti-discrimination laws
• Employment laws
• Work health and safety laws (“WHS laws”)

Sexual harassment is defined in section 28A(1) of the Sex Discrimination Act 1984 (Cth) (“the Sex Discrimination Act”) as any unwelcome sexual advance, request for sexual favours, or actions of a sexual nature, under circumstances where a reasonable person would anticipate the possibility that the person being harassed would be offended, humiliated, or intimidated. The Sex Discrimination Act along with state and territory anti-discrimination laws provide for the primary framework for addressing sexual harassment.

These laws expressly prohibit sexual harassment and operate concurrently. A victim to sexual harassment may choose to pursue action in either federal, or state or territory jurisdiction. However, they will not be able to pursue action in both jurisdictions. However, different jurisdictions have variations in definitions, coverage, and procedures, which can lead to lower accessibility for victims.

In regards to employment laws, both the Fair Work Act 2009 (Cth) (“the Fair Work Act”) and the Fair Work Regulations 2009 (Cth) (“the Fair Work Regulations”) govern the relationship between employer and employee within Australia. Whilst the Fair Work Act does not explicitly contain provisions against sexual harassment, it has other provisions that may apply, including:

• Protections against adverse action on the basis of a workplace right
• Protections against adverse action on the basis of sex
• Anti-bullying
• Unfair dismissal
• Unlawful termination on the grounds of sex

However, the Commission notes that the lack of express prohibition against sexual harassment in the Fair Work Act means that in practice, these provisions do not adequately address sexual harassment actions, and victims can be left without appropriate redress.

Under WHS laws, such as the Work Health and Safety Act 2011 (Cth), a business owner has a duty of care to ensure the physical and psychological health and safety of their workers. Whilst they do not expressly prohibit sexual harassment, these laws impose a positive duty to prevent sexual harassment, and a broader duty to eliminate and manage the risks of sexual harassment in the workplace. However, the Commission notes that there are no regulations or codes of practice under WHS laws that focus on the minimisation and management of psychological risks or hazards, including workplace sexual harassment.

The Commission, on page 442 of the final report, comments:

Recommendations for Improvement

One of the main recommendations of the Commission is to establish a Workplace Sexual Harassment Council (“the Council”), in order to improve co-ordination and consistency between the three current legislative schemes, and therefore improve prevention and response to sexual harassment. The Commission suggests that the Council be headed by the Commissioner, and include representatives from the Fair Work Ombudsman, the Fair Work Commission, Safe Work Australia, and the heads of Workplace Safety Authorities, Compensation Authorities, and the Australian Council of Human Rights Authorities. Associate members of the Council would include representatives across government and non-government organisations, including employer and union representatives.

The Commission also recommends that rather than having a system reliant on individual complaints, the improved regulatory framework should encourage and support employers to take proactive and preventative measures.

Specific to the Sex Discrimination Act, the Commission recommends that some amendments be made, including:

• Imposing a positive duty on employers to prevent sexual harassment, sex discrimination and victimisation
• Updating and broadening definitions within the legislation in order to better cover changing workplaces, and address new forms of harassment at the workplace
• Stronger enforcement powers for the Commission in assessing compliance and enforcement of the positive duty

Some of the other recommendations noted in the final report include:

• Providing the Commission with broader inquiry functions in order to investigate systemic unlawful discrimination
• Making legislative amendments in order to provide for more clarity and consistency across federal, state, and territory legislation to make the complaints process more accessible
• More flexibility around timeframes to take into account reasons why victims delay making complaints
• Introduction of a ‘stop sexual harassment order’ under the Fair Work Act and the Fair Work Regulations
• Clarification of employer duties under WHS laws in regards to workplace sexual harassment
• Better responses from the police and judiciary to victims are also required

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National Inquiry into Sexual Harassment in Australian Workplaces (Australian Human Rights Commission, 20 December 2018)

Respect@Work: Sexual Harassment National Inquiry Report (2020) (Australian Human Rights Commission, 5 March 2020)