WHS risk not individual misconduct: Issues for employers from the National Inquiry into Sexual Harassment in Australian Workplaces
What you need to know
The Australian Human Rights Commission recently released its Report into the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces. The Report:
- Recommends a new evidence-based approach shifting from the current reactive, complaints-based approach, to one which requires positive actions from employers and a focus on prevention
- Identifies as a problem employers' current focus on sexual harassment as individual misconduct, and proposes that the focus needs to be on the cultural and systematic drivers of sexual harassment, and preventative action
- Considers a number of aspects of the Model WHS laws as approaches that could assist in the prevention / management of sexual harassment
- Notes that no code of conduct or legislation governing duties of board members explicitly refers to sexual harassment; and
- Makes a number of recommendations which will impact employers in preventing sexual harassment, or defending their management of and response to, sexual harassment complaints.
What you need to do
- Employers may wish to consider the possible impact of these recommendations, pending the Commonwealth Government's response to the Report.
Why is this an issue now?
The Australian Human Rights Commission recently released its Report into the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces.
At 932 pages, the Report is a comprehensive, data driven analysis, that considers local and international research and experiences, and 460 submissions. It takes a whole-of-community approach to its subject matter, and recommends a new evidence based approach shifting from the current reactive, complaints-based approach, to one which requires positive actions from employers and a focus on prevention, to save costing employers, government and victims an estimated $3.5 billion annually.
A new approach: positive duty to prevent sexual harassment
The new approach will place a higher burden on employers to discharge their responsibilities within the workplace. Obligations will extend beyond investigating and responding to complaints, to ensuring that measures are taken to prevent sexual harassment, as far as reasonably possible.
In this Employment Alert, we summarise some of the Report's key recommendations and considerations which will be most relevant to employers in preventing sexual harassment, or defending their management of and response to, sexual harassment complaints.
WHS risk not individual misconduct: Considerations from the Model WHS laws to apply to sexual harassment
The Report discusses that the lack of a positive duty to prevent workplace sexual harassment means that employers place a higher priority on compliance with employment / WHS laws rather than discrimination law.
The Report identifies as a problem employers' current focus on sexual harassment as individual misconduct, and proposes that the focus needs to be on the cultural and systematic drivers of sexual harassment, and preventative action through leadership, risk assessment, transparency, culture and knowledge.
The Report considers a number of aspects of the Model WHS laws as approaches that could assist in the prevention / management of sexual harassment, in particular:
- A positive duty to prevent conduct;
- The concept of a PCBU (person conducting a business or undertaking), being broader than just an employer;
- The definition of 'worker' to encompass all people in the workplace, including categories of people not currently captured under the various sexual harassment laws, such as volunteers, and labour hire staff; and
- Applying a risk assessment framework approach.
Assessing risk in a WHS framework involves considering workplace hazards and assessing the likelihood of them happening. Employers identify key risk indicators, such as the factors below, then gather relevant data and generate preventative measures to respond to them.
The Report highlighted that factors in workplaces that can increase the risk of sexual harassment include male-dominated workforces, hierarchical workplace structures, workplaces that involve a high level of customer or client contact, use and availability of alcohol in the workplace and isolated or remote work locations.
Consideration of increased obligations on boards to address sexual harassment
The Report notes that no code of conduct or legislation governing duties of board members explicitly refers to sexual harassment. The recommendations, however, go to board education and how to monitor and manage sexual harassment as a non-financial business risk, rather than to further duties for directors.
The Report also recommends that the ASX Corporate Governance Council introduce sexual harassment indicators for ASX-listed entities to report against, under its Corporate Governance Principles and Recommendations.
Other proposed changes to the legal framework
Other key recommendations of relevance to employers include:
| Objective | Recommendation |
|---|---|
| Positive duty | The Sex Discrimination Act 1984 (Cth) and Anti-Discrimination Act 1977 (NSW) be amended to impose an enforceable positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. |
| Increased enforcement | The AHRC be given the function of assessing and enforcing compliance with the positive duty, and a broad inquiry function, including to order production of documents and examination of witnesses. |
| Expanded definitions of 'workplace' and 'workplace participant' |
The definitions of ‘workplace participant’ and ‘workplace’ cover all people in the 'world of work', including paid and unpaid workers, and those who are self-employed. |
| Address sexual harassment in WHS instruments | WHS ministers agree to amend the model WHS Regulation to deal with psychological health, as recommended by the Boland Review, and develop guidelines on sexual harassment with a view to informing the development of a Code of Practice on sexual harassment. |
| More consistent, cross regulator approach | Establish a Workplace Sexual Harassment Council (Council), chaired by the Sex Discrimination Commissioner, funded by the Australian Government with representatives from the Fair Work Ombudsman, the Fair Work Commission, Safe Work Australia, the Heads of Workplace Safety Authorities, the Heads of Workers’ Compensation Authorities and the Australian Council of Human Rights Authorities. |
| Promote fairness in the use of NDAs |
Develop a practice note or guideline that identifies best practice principles for the use of NDAs in workplace sexual harassment matters. |
| Cover state public servants |
|
| Extended vicarious liability |
Liability for sexual harassment be extended to those who aid or permit another person to sexually harass a person. |
| Longer time frame for reporting |
Timeframe for exercising the discretion to terminate a complaint be extended from 12 to 24 months. |
| Costs | A cost protection provision, consistent with the Fair Work Act, be introduced into the Australian Human Rights Commission Act (ie no liability for costs unless the claim is vexatious or without reasonable cause, or if the court is satisfied that a party’s unreasonable act or omission caused the other party to incur costs). |
| Increase FWC powers |
|
Employers may wish to consider the possible impact of these recommendations, pending the Commonwealth Government's response to the Report.
Authors: Jennie Mansfield, Partner; and Julie Mills, Expertise Counsel.
Key Contacts
We bring together lawyers of the highest calibre with the technical knowledge, industry experience and regional know-how to provide the incisive advice our clients need.
Keep up to date
Sign up to receive the latest legal developments, insights and news from Ashurst. By signing up, you agree to receive commercial messages from us. You may unsubscribe at any time.
Sign upThe 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.
