In March 2020, the Australian Sex Discrimination Commissioner’s Respect@Work Report was released publicly. Today the Federal Government responded with its The Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces. The Government says it is committed to building a culture of respectful relationships within workplaces and that it has agreed to or notes all 55 recommendations. The Government proposes a “whole-of-society” response to prevent and address sexual harassment.
The Roadmap for Respect says that a respectful culture should be commonplace. It should be business as usual. However, the findings of the Respect@Work Inquiry demonstrated that this is not the case. The Government has said that dealing with sexual harassment is a priority and is central to advancing women’s safety and economic security.
So, what changes will we see, and when will we see them?
A significant number of legislative changes are agreed by the Government and therefore, it can be expected that they will be enacted at some point. These include that section 387 of the Fair Work Act 2009 will be amended to clarify that sexual harassment can constitute a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable. The Fair Work Regulations 2009 amend the definition of serious misconduct to include sexual harassment. This inclusion will clarify that sexual harassment within the workplace can justify dismissal without notice. Further that the ‘stop bullying order’ will be available in the context of sexual harassment.
The Government will amend the Sex Discrimination Act 1984 to ensure greater alignment with model WHS laws and to make the system for addressing sexual harassment in the workplace easier for all parties to understand and navigate. The Government will also clarify the scope of the Sex Discrimination Act to extend to judges, members of parliament and remove the exemption of state public servants. Where appropriate, the Government will support legislative reform to support victims, particularly in defamation proceedings.
While there have been some significant changes that are agreed, there are 3 key recommendations that remain under consideration by the Government and may not be enacted. These include:
• Recommendation 17 which concerns the introduction of a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as reasonably practicable. The Government considers there is an existing positive duty and given the Report’s findings that the current system for addressing workplace sexual harassment is complex and confusing for victims and employers to navigate, the Government will assess whether such amendments would create further complexity, uncertainty or duplication in the overarching legal framework.
• Recommendation 19 concerns amending the Australian Human Rights Commission Act 1986 to provide the Commission with a broad inquiry function. The Government has noted concern that the AHRC adopting the role of investigator as a matter of course may undermine the effectiveness of the cooperative model.
• Recommendation 23 suggested the Australian Human Rights Commission Act be amended to allow unions and other representatives to bring representative complaints to court. The Government has noted that there are already existing mechanisms to enable representative proceedings in the Federal Court.
How can WEIR help?
Noting that the Government considers there is already a positive obligation to make their workplaces safe, having robust training in sexual harassment is imperative. We have a team of consultants who are able to deliver sexual harassment training to ensure staff understand what sexual harassment is, the drivers and impacts and how it should inform their work. We can also ensure that your workplace understand the changes and what implementation of them will mean.
A safe workplace also requires an appropriate response to allegations of sexual harassment. In the context of a landscape which appears to be set to become more litigious, having procedurally fair and appropriate investigations is crucial for employers and employees.
Workplace investigations are likely to see changes as a result of the Government’s Response to the Respect@Work Report. Once amendments have been made to the Sex Discrimination Act, it is likely that the definition of workplace participant and workplace will be expanded in light of recommendation 16 resulting in all people in the world of work, including paid and unpaid workers and the self-employed being covered. This is likely to result in an increase of participants and present some difficult challenges in dealing with the findings where non-employee participants are unable to be disciplined. In line with the Respect@Work Report, WEIR takes a trauma-informed approach to complaints of sexual harassment and will always consider what the most appropriate response is. An investigation is not always the preferred course of action but, the victim’s preferences need to be at the forefront. Our consultants are well equipped to deal with allegations of sexual harassment in a victim centred and trauma-informed manner.
While the Government’s response is positive, it will be a matter of time to see how quickly the changes are implemented and what it means for creating safe workplaces for Australian workers.
Jessica Kerr is a Senior Consultant with Weir Consulting (National) is an experienced employment lawyer and workplace investigator in the public and private sector.