The prevalence of sexual harassment in the workplace is a topic that is front and centre for many employers at the moment.
As recent media attention shows, a failure to eliminate or prevent sexual harassment in the workplace creates significant risks to employers and their employees, including to the health and safety of employees, and to the economic and reputational viability of employers.
The Australian Human Rights Commission (AHRC) has finalised its National Inquiry into Sexual Harassment in Australian Workplaces (Inquiry) and produced its report recommending a number of changes to legislation and workplace cultures to address the ongoing persistence and prevalence of sexual harassment.
The background
Sexual harassment was first recognised as a form of unlawful discrimination more than 30 years ago. However, reports of discrimination on the grounds of sex, including sexual harassment, continue to be raised. Following the momentum of the #MeToo movement, the AHRC commenced the Inquiry in mid-2018.
The Inquiry was tasked with, amongst other things, making recommendations in relation to:
- the prevalence, nature and reporting of sexual harassment in Australian workplaces;
- the role of technology;
- the drivers, including risk factors for particular groups or in different workplace settings, of sexual harassment;
- the current legal framework for addressing and eliminating sexual harassment; and
- the impact of sexual harassment on individuals and businesses, including economic impact.
The findings
Unsurprisingly but disappointingly, the Inquiry found that workplace sexual harassment is pervasive and prevalent in Australian workplaces, with almost 2 in 5 women and 1 in 4 men experiencing sexual harassment at work in the last 5 years. In addition to the harm caused to individuals who are harassed, sexual harassment has a negative impact on businesses, including:
- lost productivity;
- staff turnover;
- negative impacts on workplace culture;
- litigation, workers compensation claims and complaints; and
- reputational damage.
The AHRC’s recommendations
Overall the AHRC made 55 Recommendations to drive cultural and societal change.
Of relevance for employers are the following proposed amendments to the legislative framework currently in place.
- Amend the Sex Discrimination Act 1984 (Cth) (SDA) to include a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.
- Provide additional powers to the AHRC to:
a. assess compliance with that new duty and for enforcement of that duty, including a power to:
i. Undertake assessments of compliance, and issue compliances notices;
ii. Enter into agreements or enforceable undertakings with the organisation; and
iii. Apply to the Court for an order requiring compliance with the duty; and
b. undertake inquiries into systemic unlawful discrimination, including sexual harassment, including powers to require:
i. the giving of information;
ii. the production of documents; and
iii. the examination of witnesses.
- Amend the SDA to ensure that individuals and employers are liable under section 105 if they “caused, instructed, induced, aided or permitted” an individual to commit sexual harassment.
- Extend the time period before which a complaint under the SDA will be terminated to 2 years from the time of the alleged sexual harassment.
- Amend the Australian Human Rights Commission Act 1986 (Cth) to allow unions and representative groups to bring representative claims to Court.
- A disclosure process be established which enables “victims” of historical workplace sexual harassment matters to have their experience heard and documents with a view to promoting recovery. There is currently no detail about how, if adopted, respondents to a complaint will be given an opportunity to respond to the allegations.
- Introduce a “stop sexual harassment order” akin to the “stop bullying order” in the Fair Work Act 2009 (Cth) (FW Act).
- Amend the FW Act and Regulations to ensure that serious misconduct includes sexual harassment, and clarify that sexual harassment can be conduct amounting to a valid reason for dismissal.
Safe Work “preventing workplace sexual harassment” guide
In January 2021 Safe Work published a guide directed at preventing sexual harassment in the workplace. You can access the guide here.
Considerations in the guide for employers include, but are not limited to:
- Reviewing the layout of workplaces to ensure good visibility and ease of movement amongst workers;
- Reviewing the transport of workers, including ensuring adequate lighting in car parks and arrangements in place for workers during travel, such as when workers are in vehicles together, at client’s or customer’s premises, off-site or any other location where work is performed;
- Providing regular supervision and communication with workers, particularly when working off-site or remotely; and
- Collecting de-identified details of all sexual harassment complaints, including those not pursued, to identify systemic issues in the workplace.
What should employers be doing now?
Currently, these are recommendations and have not been enacted into law. However, the recommendations reflect, for the most part, the present sentiment in the community and pressure is likely to increase to see real changes to address this issue.
In the meantime, this is a prime opportunity for employers to:
- review the measures it has in place to prevent and address discrimination and sexual harassment in the workplace;
- review its complaint and dispute resolution processes to ensure that individuals feel secure and are supported to make complaints of alleged sexual harassment or discrimination;
- review the training undertaken by employees to ensure that it is targeted, clear and pitched in a manner that is consistent with a goal of eliminating and preventing sexual harassment in the workplace; and
- consider the workplace culture, including ensuring that the leadership of the business demonstrates attitudes and behaviours consistent with the elimination and prevention of sexual harassment at work.
We look forward to keeping you updated on any further developments.
If you would like to know more about the Inquiry or what you could be doing to ensure compliance with anti-discrimination laws, please contact our Employment and Workplace Relations team on (08) 9321 0522.
