Business Insight

An HR and Safety issue Preventing and responding to sexual harassment in the workplace

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    What you need to know

    • The Respect@Work Report by Sex Discrimination Commissioner Kate Jenkins released in March 2020 found that sexual harassment in Australian workplaces is prevalent and pervasive. 
    • Australian employers already have obligations under Work Health and Safety legislation to ensure workers are not exposed to risk from sexual harassment. Sexual harassment and sex discrimination are also unlawful under Discrimination legislation.
    • The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 proposes changes to the current legislative regime to more directly deal with sexual harassment in employment. For more information about the status of the Bill, please listen to our podcast.
    • In a recent Ashurst webinar, former Sex Discrimination Commissioner, Elizabeth Broderick AO, observed that "just because employers are not hearing that sexual harassment is an issue in their workplace, does not mean that it is not happening there. Formal reporting rates of sexual harassment are only around 3%... It is time to flip the system and shift efforts towards prevention and intervention".

    What you need to do

    Employers should be taking action now to:

    • consider sexual harassment in the workplace as both an employment/discrimination issue, and as a work health and safety issue;
    • implement robust measures to prevent and respond to sexual harassment in the workplace. These measures must go beyond updating policies and procedures and online compliance training; and
    • keep monitoring this space. The expectations and requirements placed on employers by the community, employees, regulators and legislators are continuing to evolve. Good complaints processes and well-meaning leaders are no longer enough. There continues to be a strong push for a positive duty to be included in the Sex Discrimination Act 1984, in addition to current duties under WHS legislation, which would require employers to take "reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible".

    Why is this an issue now?

    The Respect@Work: National Inquiry into Sexual Harassment in the Workplace Report by Sex Discrimination Commissioner Kate Jenkins was released in March 2020.

    The Report found that the prevalence of sexual harassment in Australian workplace is "prevalent and pervasive: it occurs in every industry, in every location and at every level in Australian workplaces". 

    An Australian Human Rights Commission Survey in 2018 recorded that 33% of people (including 39% of women) who had been in the workforce in the previous five years had experienced workplace sexual harassment.

    It was estimated that the total cost of workplace sexual harassment to the Australian economy is $3.8 billion annually, with lost productivity contributing $2.6 billion to that estimate.

    Employers' current obligations

    There are a range of existing legislative duties which are relevant to an employer's obligation to prevent sexual harassment (and sex discrimination) in the workplace including:

    • under Australia's model work health and safety legislation, employers have a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers;
    • anti-discrimination legislation, including the Sex Discrimination Act 1984, prohibits sexual harassment and sex discrimination in employment. Employers can be held liable for acts of discrimination or harassment in the workplace if they have not taken all reasonable steps to prevent employees or agents from engaging in unlawful discrimination or sexual harassment; and
    • the Fair Work Act 2009 prohibits adverse action being taken against an employee because of their sex.

    However, the Respect@Work Report identified a number of concerns with the current framework for dealing with sexual harassment, including that:

    • the current legal and regulatory system for addressing workplace sexual harassment is complex and confusing;
    • the existing framework takes a reactive, complaints-based approach rather than imposing a positive duty;
    • there is no legislated director’s duty or code, and no express WHS Regulation or Code of Practice that explicitly refers to sexual harassment; and
    • there is a current focus on individual misconduct rather than cultural and systemic prevention.

    The response to the Respect@Work Report

    As part of the Federal Government's response to the Respect@Work Report, the Federal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 on 24 June 2021. The Senate Education and Employment Legislation Committee reviewed the Bill and recommended in August 2021 that the Bill be passed.

    In addition to proposed legislative change, a number of steps are being taken to ensure that appropriate resources, guidance, training and data are available to assist both employers and employees to deal with this issue.

    Regulators are placing an increasing focus on what employers are doing to prevent and respond to sexual harassment in the workplace, particularly from a work health and safety perspective.

    Key proposed amendments to the Fair Work Act 2009 (Cth)

    The Respect@Work Bill proposes to expand the anti-bullying jurisdiction of the Fair Work Commission to expressly enable the Commission to make orders to stop sexual harassment.

    The Commission will be able to make orders against employers and individuals in circumstances where:

    • the Commission is satisfied that a worker has been sexually harassed at work (a single instance of harassment will be sufficient); and
    • there is an ongoing risk that the worker will continue to be sexually harassed at work.

    The focus of this jurisdiction will be on the Commission making orders to prevent an ongoing risk of sexual harassment to a worker, rather than penalising employers or individuals for past conduct. The Commission will not have the power to award compensation.

    In our experience, workers are most likely to use this jurisdiction where they do not have faith in an employer's systems for addressing an allegation of sexual harassment, or where they are dissatisfied with the process adopted by an employer in addressing an allegation or the outcome of that process.

    The Senate Committee Report has recommended that the commencement of the stop sexual harassment jurisdiction be deferred until no earlier than two months after the amendments commence operation to enable the Commission to prepare for, and successfully implement, the changes to its jurisdiction.

    The proposed amendments will also confirm that sexual harassment can provide a valid reason for dismissal under the Commission's unfair dismissal regime.

    The Fair Work Regulations have already been amended to confirm that sexual harassment falls within the definition of serious misconduct under the Fair Work Act.

    Key proposed amendments to the Sex Discrimination Act 1984

    The Respect@Work Bill proposes to amend the Sex Discrimination Act to introduce a new prohibition on harassment on the ground of sex.

    It will be prohibited under the Sex Discrimination Act for a person to engage in unwelcome conduct of a seriously demeaning nature because of a person's sex (or a characteristic that appertains to that sex) in circumstances where a reasonable person, having regard to all of the circumstances, would have anticipated the possibility that the person would be offended, humiliated or intimidated.

    The proposed amendment sits between the current prohibition on sexual harassment (which prohibits conduct of a sexual nature) and unlawful discrimination on the basis of sex (which prohibits less favourable treatment of a person because of their sex).

    The Bill also broadens the scope of coverage of the Sex Discrimination Act, by:

    • introducing the concepts of "worker" and a "person conducting a business or undertaking" (PCBU)" from Work Health and Safety legislation. These definitions extend the prohibitions from "employers" and "employees" to cover broad categories including volunteers, interns and the self-employed;
    • confirming that the Act will apply to members of parliament and their staff, judges, and Federal and State public servants; and
    • expanding the circumstances in which workers are protected from sexual harassment and harassment on the basis of sex to circumstances connected with their work.

    It is also proposed that the Australian Human Rights Commission Act 1986 be amended to extend the time in which to make a complaint under the Sex Discrimination Act from 6 months to 24 months.

    Relevantly, the proposed amendments do not include the insertion of a positive duty on employers to take reasonably practicable steps to eliminate sex discrimination, sexual harassment and victimisation and the accompanying enforcement powers for the Australian Human Rights Commission. This was one of the most prominent recommendations of the Respect@Work report and there is a continuing push by some for a positive duty to be included in the Sex Discrimination Act.

    Taking action now to prevent and respond to sexual harassment

    Having regard to the existing duties placed on employers, the serious consequences of sexual harassment in the workplace and the increasing focus on and regulation of employers in this space, employers should be taking action now.

    Sexual harassment is not just an employment/discrimination issue. It also needs to be dealt with by employers as a work health and safety issue given the serious impacts that harassment can (and does) have on victims' psychological health.

    Employers should be taking positive steps to ensure that their processes and systems are directed at preventing and responding to sexual harassment. These changes should go beyond updating policies and procedures and online compliance training to take account of both legislative change and compliance, and changing societal views.

    From a prevention perspective:

    Leadership and cultureA prevention culture must be cascaded through an organisation from the leadership team and a zero tolerance approach not only advocated, but also practised and visible. Boards of Directors, the CEO and those in leadership positions should be engaging with this and taking steps. 
    Risk assessment Work health and safety risk assessments should be undertaken, in consultation with workers, to identify risk factors that may contribute to sexual harassment occurring in the workplace and controls to eliminate the risks or, if elimination is not reasonably practicable, minimise the risks.
    Accountability frameworks Employers should be transparent in their objective to eliminate sexual harassment and how this will be achieved and report on outcomes against those objectives. Recruitment, promotion and remuneration KPIs could also be tied to prevention.
    Measuring, monitoring and reporting  Consider implementing mechanisms for obtaining a deeper understanding of the nature and prevalence of sexual harassment in your workplace. Data obtained will be important in assessing whether existing controls are effective and if not, what additional controls could be implemented. This information will also be relevant for executive teams and boards in the context of their personal duties under WHS laws.
    Supporting structures Experiential training, practical policies and processes that encourage reporting in a range of ways, and offer a range of possible responses, not just "one size fits all" should be implemented to support and promote cultural change, and shift bystanders into upstanders who raise issues, rather than just stand by and watch them.

    From a response perspective:

    Appropriate and adapted reporting and response mechanisms There should be flexible mechanisms for reporting to a "safe space" and responding to complaints (including restorative measures where appropriate).
    A victim-centred approach to dealing with issuesThis includes providing trauma-informed training for first responders and investigators, ensuring appropriate confidentiality and disclosure protocols and a balancing of victim agency and managing the risks to others (and ensuring an employer's obligations in this regard are well understood).
    Defensible investigation processes Investigation processes need to recognise the often difficult circumstances in which workers have raised issues of sexual harassment and facilitate prompt action, but in a way that continues to ensure procedural fairness is afforded, neutrality is maintained and that outcomes are defensible.
    A broader focus Allegations of sexual harassment should no longer only be dealt with as individual issues of misconduct. A separate safety analysis should be conducted where allegations arise to identify any systemic causes and failures which allowed the conduct to occur and how these issues can be addressed. The obligation to notify safety regulators should also be considered.

    Sexual harassment in the workplace is receiving long overdue attention. Employers, legislators, regulators and the community are coming together to lift the bar beyond mere compliance towards best practice so that everyone experiences their right to be safe, and respected, at work.

    Authors: Julia Sutherland, Partner; Tony Morris, Partner, Ashurst Risk Advisory; Peter McNulty, Senior Associate; and Charlotte Ball, Lawyer.

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.
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