Legal Outlook respect@work transcript

Transcript

Peter McNulty:
Hello, and welcome to this Ashurst Legal Outlook podcast. My name is Peter McNulty and I'm a senior associate in the employment team at Ashurst. In today's follow-up episode, my colleague Elissa Speight, a partner at Ashurst, and I, will discuss recent developments regarding sexual harassment in the workplace since our last podcast.

If you haven't already done so, I would encourage you to listen to the first part of this conversation in Ashurst Legal Outlook episode seven, where to now for sexual harassment in Australian workplaces? So Elissa, there've been a few developments in this space since the government's response to the Respect@Work report.

Elissa Speight:
Thanks Peter. Yeah, that's right. There's a few things to cover off to get everybody up to speed since our last podcast. As we discussed last time, when the government released its response to the Respect@Work report, it foreshadowed that legislation would soon be introduced to address a number of the recommendations. That legislation was introduced in late June and as expected, it proposes a number of amendments to some key pieces of legislation in this space, including the Australian Human Rights Commission Act, the Fair Work Act and the Sex Discrimination Act. That bill was then referred to a Senate committee who received a number of submissions from interested parties and considered the proposed amendments. And in early August the Senate committee handed down its report on the bill. Basically the committee for the most part endorsed the proposed amendments, but Labor and Greens members consider that the bill hasn't gone far enough in implementing the recommendations of the report.

Peter McNulty:
And Elissa, that shouldn't really have been a surprise because the proposed amendments largely reflect what was in the government's response, but there are a few amendments that employers should be aware of in particular.

Elissa Speight:
Yeah, that's right Pete. As noted in the government's response, and also discussed in our last podcast, the amendments include harassment as an expressed example of serious misconduct. So that is conduct justifying dismissal without notice. There's also a legislative note that will be added to the Fair Work Act in the unfair dismissal provisions indicating that sexual harassment may constitute a valid reason for unfair dismissal, where that harassment is carried out in connection with the person's employment. So this note, it's included more by way of clarification. It largely reflects the current case law, but it does provide an indication of how the parliament expects sexual harassment to be treated when the fair work commission is considering whether a dismissal for sexual harassment is harsh, unjust or unreasonable.

It does leave open the tricky question of where the line is drawn on what will constitute conduct in connection with employment. So for example, where the sexual harassment occurs between colleagues out of hours and away from the workplace. But the most substantial change that's been proposed to the Fair Work Act is the creation of a stop sexual harassment jurisdiction. This has been achieved by broadening the current stop bullying jurisdiction to expressly cover sexual harassment. So in simple terms, this will allow an employee to seek an order from the Fair Work Commission, requiring a person to stop sexually harassing them.

Peter McNulty:
And there was a recognition in the Respect@Work report itself, but allegations of sexual harassment could probably already be brought using the commissions stop bullying jurisdiction. However, the key difference between that jurisdiction and the new stop sexual harassment jurisdiction being introduced is that an applicant will only need to establish a single instance of sexual harassment has occurred in order to make an application. And that differs from the bullying jurisdiction, whereby an applicant has to establish there's been repeated unreasonable behavior posing a risk to health and safety before they're able to make an application.

However, even though there's only sort of a single instance of sexual harassment required to be established, it has to be remembered that this jurisdiction has a focus on preventing future risks rather than penalizing past conduct. And so an applicant is going to need to establish that there's an ongoing risk of harm or an ongoing risk of sexual harassment occurring in the workplace. What that means is that if the victim of that sexual harassment has left the workplace, or if the perpetrator or alleged perpetrator of that sexual harassment has left the workplace, the commission really isn't going to have a role in circumstances where there isn't that ongoing risk of sexual harassment arising.

Elissa Speight:
So another important thing to be aware of about the new stop sexual harassment jurisdiction is that like the bullying jurisdiction, the Fair Work Commission can't order compensation for sexual harassment. And this is because the commission's power is really about stopping the conduct from occurring in the future. The experience from the anti-bullying jurisdiction is that the commission will make orders that relate to specific conduct such as an order that a person not attend particular meetings that the victim will be attending. The commission is not going to make a general order that a person simply stop sexually harassing person X, for example. It's possible that the commission may also make orders requiring an employer to do particular things like provide training or undertake a particular process. The Fair Work Commission has asked for more time before this jurisdiction is available to applicants. And the committee responded to this by recommending that the Fair Work Commission be given two months after commencement to prepare for the introduction of the new stop sexual harassment jurisdiction.

Our experience with the introduction of the anti-bullying jurisdictions is that it was more of a slow burn than an opening of the flood gates, in that there wasn't a rush of applicants seeking anti-bullying orders when the jurisdiction was first enacted. We can see potentially a number of reasons for this going. To the commission means taking your complaint to an external jurisdiction. And that can be quite a big step for a person that's suffered sexual harassment to take. In our experience, employees generally go to the commission for bullying orders in terms of the bullying jurisdiction, where they don't have faith in their employers systems or processes for dealing with bullying, or where they're dissatisfied with the way that an existing process has been applied, or they're just not happy with the result. Remembering that no compensation can be awarded in this jurisdiction, seeking a financial outcome is not a motivator here.

So what we think is that with the stop sexual harassment jurisdiction, that it's likely that they're going to be the same sort of push factors that will exist as exist in relation to the anti-bullying jurisdiction. So the message to employers in this space is that if you want to avoid stop sexual harassment applications, you should do all the things that you really should already be doing anyway, like having robust policies and processes in place to prevent and address sexual harassment. But in addition to this, it would be sensible to consider whether you're giving victims confidence that these processes exist and that they'll be applied properly. Because what we've seen is where there's a lack of confidence that a situation will be dealt with internally, an employee is going to have more incentive to seek help externally via the Fair Work Commission.

Peter McNulty:
And Elissa, there's also a number of changes to the Sex Discrimination Act. And one that I think didn't really focus prominently in the government's response was the introduction of a new prohibition on harassment on the basis of sex. Now, this prohibition will prohibit harassment on the basis of sex or a characteristic relating to a person's sex. And that's different from the current sexual harassment provisions in the act, which are more directed towards conduct of a sexual nature. So this prohibition will apply in circumstances where a person engages in unwelcome conduct of a seriously demeaning nature. And a reasonable person having regard to all of the circumstances would have anticipated the possibility that that person would have been offended, humiliated, or intimidated.

There was quite a bit of engagement during the committee process about this proposed change and this new prohibition. A number of submissions to the committee suggested that the bar was being set too high with respect to this prohibition. There was quite a bit of concern that setting the test that conduct of a seriously demeaning nature, would mean that a lot of conduct which is of concern in the public and to employers and employees, isn't going to be captured by this prohibition. It's also significant to note that there's a broadening in the Sex Discrimination Act amendments proposed with respect to the prohibitions against sexual harassment and harassment on the basis of sex. The proposal is to expand the application of these provisions by introducing the work health and safety terms of person conducting a business or undertaking and worker to express who those prohibitions are to apply to. What that will mean is that the protections will be expanded to individuals who weren't previously covered. Volunteers, interns, and self-employed workers in particular.

The amendments also proposed to make clear that these prohibitions and protections will apply in connection with a person's work or the harassers work. What that means is that these protections aren't intended to only apply to harassment occurring between employees in a workplace, but could relate for example, to a customer making derogatory remarks about an employee's appearance on the basis of their gender while they're at work. Or to prohibit an employee from making lewd comments in a meeting with a client and engaging in sexually harassing conduct towards the client as well. The proposed legislation will also make clear that the Sex Discrimination Act provisions will apply to members of parliament, judges, and staff of parliamentarians, and also seek to protect state and territory public servants as well.

Elissa Speight:
Another proposed change relates to the timeframes for bringing a complaint. So the current legislation enables the Human Rights Commission to dismiss a complaint that's been made under the Sex Discrimination Act if it's been more than six months after the incident occurred. The proposed amendments look to expand these time limit out to 24 months. And that's in recognition of the fact that sometimes it takes some time for a victim to come forward about this sort of conduct.

One fairly topical recommendation that has not been addressed in the proposed amendments is the inclusion of a positive duty to prevent sexual harassment. So this was a subject of some consideration by the dissenting members of the committee reviewing the bill, and also a number of those who have made submissions about it. The Jenkins report proposed a positive duty being included in the Sex Discrimination Act, which would require employers to take reasonable and proportionate measures to eliminate sex discrimination and sexual harassment and victimization as far as possible.

In particular, the Jenkins report noted that while these broad duties exist, the lack of a positive duty means that employers place a higher priority on compliance with employment law and WHS law, than they do with discrimination law. And as a result, the responses to sexual harassment by employers tend to be more reactive rather than proactive. The Jenkins report also noted that the lack of express WHS regulation in this space means that regulators and employers are not directly considering sexual harassment to be a work health and safety issue.

Now, rather than address these issues in the proposed amendments, the government has instead adopted more of a wait and see approach, noting that a number of other duties already exist which require employers to take steps to protect the health and safety of their employees. We are however seeing WHS regulators starting to step up what they're doing in this area, both in terms of psychosocial health generally, but also sexual harassment specifically. So our message to employers is that you really should be acting in a manner that's consistent with a positive duty existing now. So in particular, you should start viewing sexual harassment as a risk to the health and safety of your staff and make sure that you're taking proactive rather than reactive steps to address that risk.

Peter McNulty:
Elissa, I think that's really important for employers to be really taking a two-pronged approach to dealing with sexual harassment in the workplace. As you mentioned, taking preventative steps and proactive steps to prevent sexual harassment in the workplace is the first prong of really what we see is a two-pronged approach. So reviewing organizational accountability framework to make sure you're embedding that preventative culture and approach. That stamping out of sexual harassment in the workplace.

The second prong of that approach is taking a safety lens, the current processes and procedures for grievance handling, investigations, and dealing with the outcomes of those processes. So considering policies and procedures and stress testing those remains really important. So if employees haven't already done so, they do need to be considering their policies and processes. They need to be ensuring those processes and policies and how they are carried out in practice, give victims confidence to ensure that prompt action is taken when issues and allegations of sexual harassment are raised, but also that they're doing so in a way that's procedurally fair and that ensures defensible outcomes.

The other thing that's very clear is the dealing with sexual harassment in the workplace isn't just an issue for the HR team. The regulators and the community more broadly are making very clear that their expectation is leaders both at the executive level and also the board level are part of this cultural change in taking those proactive steps, and also ensuring that allegations of sexual harassment when raised are properly and promptly dealt with.

Thanks for your time Elissa today. I think what today's message really is, is that there's a lot of developments in this space occurring. They're occurring very quickly and employers need to start taking steps now if they haven't already to deal with these issues in the workplace.

Elissa Speight:
Yeah, that's exactly right. Thanks Pete.

Peter McNulty:
This is an important topic and we hope we've been able to shed some light on what employers should expect to see in the coming months and what they should start doing in practice. To hear more Ashurst podcasts, please visit ashurst.com/podcasts. To ensure you don't miss future episodes, subscribe now on Apple Podcasts, Spotify, or your favorite podcast platform. While you're there, please feel free to keep the conversation going and leave us a rating or review. Thanks again for listening and goodbye for now.