By Amber Sharp, Partner, McCullough Robertson
28 Sep 2021
Originally published 14th September 2021, reposted with permission from WiBF Corporate Member, McCullough Robertson.
On 2 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (Act) was passed. Described by some as a “missed opportunity”, the amendments are discussed below. In real terms, it remains to be seen whether the Act will have any real impact on tackling the enduring high incidence of sexual harassment.
On 29 January 2020, Kate Jenkins, the Australian Human Rights Commission’s Sex Discrimination Commissioner, delivered Respect@Work: Sexual Harassment National Inquiry Report (the Report).
The Report followed a comprehensive national survey of employees in Australian workplaces and found that “Workplace sexual harassment is prevalent and pervasive”.
With unquestionably alarming statistics, the Report also brought into sharp focus that the current approach to addressing sexual harassment in Australian workplaces – informed by sex discrimination legislation, an individual complaints-based mechanism, and employers being focused on avoiding vicarious liability – is simply not working.
Importantly, the Report found that sexual harassment is under-reported with employees not having confidence in their employer’s complaint handling processes. Also, employees were reluctant to complain, or to prosecute claims, lest they get caught up in a convoluted disciplinary investigation with consequent loss of control, in circumstances where the outcome they often desired was simply that the conduct stop.
Significantly, the Report advocated a new approach to responding to, and addressing, sexual harassment:
Recommendation 17: Amend the Sex Discrimination Act 1984 (Cth) 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.
In this way, the Report emphasised that sexual harassment needs to be viewed through a work, health and safety prism, shifting the emphasis to risk identification, minimisation and management. The employer needs to be pro-active, not simply re-active.
The Report included a total of 55 recommendations, with some 12 of those expressly addressed toward legislative reform at the Federal level.
The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth) addressed six of the recommendations. Despite sustained attempts by the opposition and the Greens, recommendation 17 was not included. Indeed, the government suggested that it was unnecessary as the positive duty already arose under work health and safety legislation and it wished to avoid duplication.
Even if only symbolically, the enunciation of a positive duty on employers under the Sex Discrimination Act 1984 (Cth) would have signalled an important shift.
Perhaps the most significant amendment, so far as concerns responding to sexual harassment in the workplace, is the amendment of the Fair Work Act 2009 (Cth) to include a “stop-sexual harassment order” jurisdiction in similar terms to the current “stop-bullying order” jurisdiction.
Responsive to the Report finding that many employees simply wanted the conduct to stop, the Fair Work Commission has already sought a two-month extension on the commencement of the jurisdiction to enable it to “gear up” for the volume of complaints it expects to receive.
Given that many consider the “stop-bullying order” jurisdiction has failed to live up to expectations and has been largely ineffective, it remains to be seen whether the new jurisdiction achieves its aim. Further, it of course once again requires the complainant to prosecute a claim.
Other amendments include:
The Act also follows amendments to the Fair Work Regulations 2009 in July 2021 to amend the definition of “serious misconduct” for the purposes of the statutory power to terminate without notice, to include sexual harassment.
Ultimately, it is becoming increasingly clear that irrespective of the recent legislative amendments, employers should adopt a work health and safety approach to sexual harassment.
Indeed, in January 2021, SafeWork Australia published Preventing workplace sexual harassment | National guidance material. The Introduction records:
Sexual harassment is a workplace hazard that is known to cause psychological and physical harm. Managing the risks of sexual harassment should be part of your approach to work health and safety.
We encourage you to take this opportunity to review how your organisation is responding to this ongoing risk and challenge in your workplace. The McCullough Robertson Employment Relations and Safety team are well placed to assist you and your business in assessing your workplace policies and complaint handling mechanisms and can be contacted here.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.
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