A New Positive Duty to Prevent Workplace Sexual Harassment – How to Get Your “House in Order”
Rubsat Amin discusses what the 2022 federal election result could mean for employers.
On Saturday night, Australia decided it was time for change, and women voters in particular demanded that their voices be heard. At the time of writing, 14 new women have been elected to the House of Representatives, including several teal independents. In fact, many of these women won formally safe Liberal seats on a platform that championed, among other important issues, gender equality and respect.
Australia has demanded change, and if election promises are fulfilled, workplaces will undergo transformative reforms in relation to the prevention of sexual harassment.
Respect@Work Election Promises
One of the Australian Labor Party’s election promises was to implement all 55 recommendations from the Respect@Work report delivered by Sex Discrimination Commissioner, Kate Jenkins, which was based on a national inquiry into sexual harassment in Australian workplaces.
The 2018 National Survey revealed that almost two in five women (39%) and just over one in four men (26%) had experienced sexual harassment in the workplace in the five years prior. Moreover, Aboriginal and Torres Strait Islander people were more likely to have experienced workplace sexual harassment than people who are non-Indigenous (53% and 32% respectively).
Alarmingly, Ms Jenkins recently reported that sexual harassment complaints have actually increased by 25 per cent, as Australians have gradually returned to physical workplaces in the aftermath of the coronavirus-induced lockdowns. Ms Jenkins warned employers to “get their house in order” as more people continue to return to work.
So, let’s talk about how Australian employers can “get their houses in order” in anticipation of the changes that this new government will (hopefully) enact.
A Positive Duty to Prevent Sexual Harassment
Recommendation 17: Amend the Sex Discrimination Act to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.
This is perhaps the most compelling recommendation in the report, as it demands a transformative shift in employers’ obligations from reaction to prevention; rather than simply responding to incidents of sexual harassment as they occur, employers will have to commit to proactively prevent sexual harassment from occurring in their workplaces in the first place.
The Current State of Affairs
The Commonwealth Sex Discrimination Act currently only steps in after a complaint has been made, upon which there will be a legal consideration of whether to attribute vicarious liability to the employer for instances of sexual harassment perpetrated by an employee. This places the responsibility for highlighting sexual harassment issues in the workplace on the employees who experience it, and the legal determination of an employer’s vicarious liability is limited to each individual complaint, rather than addressing the problematic workplace culture as a whole.
“The onus on employees to complain about sexual harassment to elicit reform is not necessarily trauma-informed – it should not be the victim-survivor’s burden to point out a workplace’s failings, but the employer’s responsibility to ensure its employees are working in a safe environment to begin with.” Karen Iles, Director & Principal Solicitor Violet Co Legal & Consulting
How has the Election Changed Things?
The ALP has committed to legislating an enforceable ‘positive duty’ on employers to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. It will “work with the Workplace Sexual Harassment Council, employers, workers, unions and legal experts to finalise and implement stronger laws as a matter of priority … while working to minimise the regulatory burden on businesses by ensuring that any actions required of employers are reasonable and proportionate”.
How will the Positive Duty work?
The Respect@Work recommendation largely replicates the ‘positive duty’ model found in the Victorian Equal Opportunity Act. Employers would be required to actively engage with sex discrimination laws to mitigate sexual harassment in the workplace, which would include identifying and assessing risks of harassment and responding accordingly to prevent these incidents from occurring.
Beyond this, the scope of implementation of the positive duty is not yet clear. The Respect@Work report suggests that micro-businesses could be exempt, which the ALP has agreed to consider. It remains to be seen whether the ALP will actually implement all 55 recommendations, and if so, how.
How Can Employers Prepare?
As Ms Jenkins stated in the Respect@Work report, “Workplace sexual harassment is not inevitable. It is not acceptable. It is preventable”. Regardless of if/when the recommendations are implemented, the election result should compel employers to reflect internally and pursue reform of its workplace culture and practices, in anticipation of the new policies that will likely be legislated.
Some tips from us:
Drivers of sexual harassment – Review and consult your team about the cultural and systemic drivers of sexual harassment in your workplace. Talk about ways to change.
Risk – Assess any risk factors in your workplace that could contribute to the occurrence of sexual harassment. Place sexual harassment on your risk register and work health and safety agenda, and develop a plan to proactively prevent sexual harassment in your workplace.
Policies – Examine and update your internal policies, including the employee Code of Conduct and other workplace health and safety regulations.
Education – Conduct workplace training to increase awareness and understanding of sexual harassment. This can be formal training sessions - however we recommend a more holistic and change management approach.
Review and evaluate – Reflect on any past complaints of sexual harassment and assess whether those allegations were responded to effectively and appropriately by the organisation.
How We Can Help
Violet Co’s unique and strategic blend of legal and consulting – with a focus on elevating the rights and voices of women and Indigenous Peoples – is the perfect combination to help your company take effective action to execute positive systems change.
We can investigate and identify the systemic and cultural drivers underpinning sexual harassment in specific workplaces, as well as any particular risk factors that are likely to contribute to future incidents.
Then, we will provide consultation and support on how to manage these drivers, control risks, create a safe workplace and promote gender equality to ultimately create a culture that prevents sexual harassment.
We specialise in workplace law and our services include:
Workplace investigations
Transformative mediations focused on system change
Regulatory and compliance services
Strategic consulting
Put together, we can help your organisation meet this new era of action to prevent sexual harassment in Australian workplaces. Again, to quote Ms Jenkins from the Respect@Work report, “ultimately, a safe and harassment-free workplace is also a productive workplace”.
A New Era? Hopefully!
The one thing that is unequivocally clear from the election result is that women, and the issues that they care about, cannot be ignored. It is fair to say these changes are a much needed update on sex discrimination and sexual harassment laws. With a new leader and waves of teal and green in Parliament, this election has given us hope that the Australian government will finally take workplace safety seriously.
Author: Rubsat Amin is a paralegal at Violet Co Legal & Consulting.
Photo: Christina @ wocintechchat.com
References
A Legislation
Equal Opportunity Act 2010 (Vic)
Sex Discrimination Act 1984 (Cth)
B Reports
Australian Human Rights Commission, Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces (National Survey Report, 2018)
Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (National Inquiry Report, 2018)
C News Articles
Motherwell, Sarah, ‘How Many Women Have Been Elected? What Seats are in Doubt? And Other Quick Questions About the Election Results’, Sydney Morning Herald (online, 22 May 2022) <https://www.abc.net.au/news/2022-05-22/election-results-2022-what-seats-in-doubt-how-many-women-elected/101089692>
Pelly, Michael, ‘Sexual Harassment Complaints up by 25pc, says Kate Jenkins’, Australian Financial Review (online, 15 May 2022) <https://www.afr.com/work-and-careers/workplace/sexual-harassment-complaints-up-by-25pc-says-kate-jenkins-20220515-p5alj1>
D Internet Materials
Roberts, Heidi, Sarah Clarke and Erin Richardson, ‘Respect@Work: Positive Duties for a New Age’, Corrs Chambers Westgarth (Web Page, 19 April 2022) <https://www.corrs.com.au/insights/respect-at-work-positive-duties-for-a-new-age#_ftn3>
‘Stopping Sexual Harassment at Work’, Australian Labor Party – A Better Future (Web Page) <https://www.alp.org.au/policies/womens-safety-at-work>