The Australian Human Rights Commission (AHRC) has recently released its ‘Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces’ report (Report) in response to the decision in June 2018 by the Sex Discrimination Commissioner, Kate Jenkins, and the then Minister for Women, the Hon Kelly O’Dwyer, to launch the independent national inquiry into sexual harassment in Australian workplaces (Inquiry).
The AHRC, as Australia’s national human rights institution, was tasked with undertaking this Inquiry which was described as a ‘world first’ by Ms Jenkins. The AHRC established a Reference Group comprised representatives from the government, business groups, unions, academia and the legal and community sectors. The launch of the Inquiry was at the peak of the #MeToo movement which put a spotlight on the prevalence of sexual assault and sexual harassment of women in society.
Sexual harassment is a significant issue in Australian workplaces across all industries and can impact individuals, employers and the workplace. The Report highlights the role that technology has played and continues to play in blurring the distinction between what is considered to be an individual’s personal world and the professional world, a consequence of which is that there are new opportunities for sexual harassment to occur and to still be regarded as within the ‘workplace’.
The Inquiry found that the cost of workplace sexual harassment to the Australian economy was estimated to be $3.8 billion. Sexual harassment has far reaching implications for affected employers and can cause a significant loss of productivity in the workplace.
The scope of the Inquiry was for the AHRC to review and report on workplace sexual harassment and make recommendations in relation to:
- its prevalence, nature and reporting in Australian workplaces;
its prevalence, nature and reporting in Australian workplaces;
- the role of technology;
- its drivers, including key risk factors for particular population groups or in different workplace settings;
- the current legal framework;
- existing measures to address it and examples of good practice;
- its impact on individuals and businesses, including its economic impact.
In her foreword to the Report, Ms Jenkins stated that “the current legal and regulatory system is simply no longer fit for purpose. In this report, I have recommended a new model that improves the coordination, consistency and clarity between the anti-discrimination, employment and work health and safety legislative schemes.” Some of the interesting recommendations made by the AHRC in the Report to address this proposal for a new legislative and regulatory include:
(1) the establishment of a Workplace Sexual Harassment Council (Council) which would be funded by the Australian Government and would include representatives from:
a. the Fair Work Commission and Fair Work Ombudsman
b. Safe Work Australia and the Heads of Workplace Safety Authorities
c. the Heads of Workers’ Compensation Authorities
d. the Australian Council of Human Rights Authorities.
The Council would also involve consultation with members of interest groups and the community.
(2) 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. ‘Reasonable and proportionate measures’ would include consideration of the following factors:
a. the size of the person’s business or operations
b. the nature and circumstances of the person’s business or operations
c. the person’s resources
d. the person’s business and operational priorities
e. the practicability and the cost of the measures
f. all other relevant facts and circumstances.
(3) the AHRC be given a broad inquiry function into systemic unlawful discrimination, including systemic sexual harassment. This would cover giving the AHRC certain powers, for example to require the giving of information, the production of documents and the examination of witnesses.
(4) the Fair Work Act 2009 (Cth) (FW Act) be amended to introduce a ‘stop sexual harassment order’ equivalent to the ‘stop bullying order’ (an order which is able to be made by the Fair Work Commission), which would facilitate the order’s restorative aim.
(5) section 387 of the FW Act be amended to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether the dismissal of a person was harsh, unjust or unreasonable.
The Report also made several important recommendations in relation to preventing and responding to sexual harassment in the workplace which, in summary, include:
- to develop education and training for board members and company officers in relation to gender equality and sexual harassment;
- the ASX Corporate Governance Council to introduce sexual harassment indicators for ASX-listed entities to report against, under its Corporate Governance Principles and Recommendations;
- Industry educational bodies, in consultation with the Workplace Sexual Harassment Council, to develop accredited education and training for individuals in roles that are responsible for advising employers on addressing workplace sexual harassment.
The AHRC has called upon the Australian Government to work with state and territory governments to implement the recommendations in the Report and to develop a joint funding package in this respect. In a media release on 6 March 2020 on behalf of the Australian Government, the Morrison Government announced that it welcomed the release of the Report and will now take the time to carefully consider its findings and recommendations.
While it is unclear at this stage when the recommendations (including the substantive changes to the legislative and regulatory framework surrounding sexual harassment, some of which are summarised above) may be introduced by the Australian Government, employers across all industries should be wary that they may be expected to take a more proactive role in relation to the identification and treatment of workplace sexual harassment.