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:
This article will focus on the current legislative framework and the Commission’s recommendations for an improved legislative system.
Within Australia, laws prohibiting sexual harassment exist on the federal, state, and territory level. These laws can be divided into three key legal frameworks:
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:
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:
“Overwhelmingly, the Commission heard that the three broad [legislative] schemes are complex and confusing for victims and employers to understand and navigate. The current system also places a heavy burden on individuals to make a formal complaint. The evidence shows that victims lack confidence in existing systems to deliver effective responses.”
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:
Some of the other recommendations noted in the final report include:
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