Proposed reforms to tackle sexual harassment

The Federal Government has announced that it will be introducing legislation to Parliament to bolster the national framework for addressing sexual harassment in Australian workplaces. The proposed legislation will implement a number of the recommendations made by the Sex Discrimination Commissioner, Kate Jenkins, in the Respect@Work Report published in 2020.

The Respect@Work Report

The Respect@Work Report was published following the Australian Human Rights Commission inquiry into sexual harassment in Australian workplaces in 2018. The inquiry found that 33% of people surveyed had experienced sexual harassment at work. The Respect@Work Report set out 55 recommendations for addressing sexual harassment in workplaces, including a range of potential legislative reforms.

The Government has now accepted in whole, in part, in principle or noted all 55 recommendations and indicated which legislatives changes it proposes be put to Parliament. However, a number of significant recommendations have not been wholly adopted by the Government yet.

Proposed legislative changes

In summary, the proposed legislative reforms are as follows:

• amending the Fair Work Act 2009 (Cth) to clarify that sexual harassment can provide a valid reason for dismissal;
• amending the definition of ‘serious misconduct’ in the Fair Work Regulations 2009 (Cth)  to expressly include sexual harassment;
• amending the Sex Discrimination Act 1984 (Cth) to ensure that liability for sexual harassment extends to all persons who cause, instruct, induce, aid or permit sexual harassment to occur;
• amending the Australian Human Rights Commission Act 1986 (Cth) to state that victimisation under the Sex Discrimination Act may form the basis of a civil action for unlawful discrimination;
• amending the Australian Human Rights Commission Act 1986 (Cth) so that complaints under the Sex Discrimination Act cannot be terminated on the grounds of time lapsed until 24 months (rather than the current 6 months) have passed since the unlawful discrimination took place, allowing victims of sexual harassment more time to come forward with their complaints; and
• although it was not a recommendation in the Respect@Work Report, extending the scope of the Sex Discrimination Act to encompass Judges and Members of Parliament and working with states and territories to include state public servants in its coverage.

Other possible changes

In addition to these legislative changes, the Government agreed in principle or in part to the following changes:

• ‘stop bullying orders’ under the Fair Work Act will be extended to sexual harassment, not just bullying. This proposal falls short of Commissioner Jenkins’ recommendation that a separate ‘stop sexual harassment order’ be introduced into the Fair Work Act;
• the Government will encourage state workplace health and safety ministers to adopt a Safe Work Australia code of practice to be developed on managing psychological risks in the workplace, including the risks posed by sexual harassment;
• support for express prohibitions on sex-based harassment, sexual harassment and conduct that creates or facilitates an intimidating, hostile, humiliating or offensive environment on the basis of sex, through amendments to the Sex Discrimination Act;
• the Government will ask the Fair Work Commission to update its guidance for employers on unfair dismissal, including dismissals related to sexual harassment;
• the Government will ask the Fair Work Ombudsman to update its guidance for workers relating to workplace rights under the Fair Work Act to include additional information if workers experience sexual harassment; and
• considering whether the Sex Discrimination Commissioner should be given broad inquiry powers to investigate systemic unlawful discrimination, including sexual harassment, in workplaces.

Commissioner Jenkins also recommended the Sex Discrimination Act be amended to include a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation. The Government is still considering whether it will implement this recommendation, stating that workplace health and safety legislation already places a duty on employers to prevent risks to a worker’s health and safety, which includes the risk of sexual harassment. It will also assess whether such a duty would create further complexity, uncertainty or duplication in the legislative framework, given the report’s findings about the complexity and confusion with the existing system for addressing sexual harassment.

What happens next?

The Government has indicated that these proposed legislative reforms will be prepared by the end of June this year.

If these legislative changes are passed into legislation, there will be significant implications for employers in the way they approach sexual harassment claims, investigations and disciplinary actions, and for employees in the recourse available if they experience sexual harassment in the workplace. In preparation for these changes, employers should:

• audit the incidence of sexual harassment complaints in their workplaces and the effectiveness of their complaint handling processes;
• identify areas where there may be a higher risk of sexual harassment within their organisation;
• consult with workers about the incidence of sexual harassment, the effectiveness of complaint procedures and measures that could minimise the risks;
• ensure leaders in the organisation understand the issues highlighted in the Respect@Work Report and the need to be proactive rather than having a reactive complaints based approach; and
• determine how it can most effectively manage and control the risks of sexual harassment in their organisation.

If the proposed legislation is passed through Parliament, employers should review their sexual harassment policies and grievance management procedures and ensure all workers and officers receive training on the new laws.