By Anthony El Salim

Thanks to the most recent amendment to the Commonwealth workplace anti-discrimination and sexual harassment framework, the recommendations of the Respect@Work: National Inquiry into Sexual Harassment in the Workplace (2020) (‘the Report’) have all been substantially implemented. This creates an opportunity to track the development of the national conversation, the Report’s findings, and the consequent legislation, to provide a complete overview of what these changes mean for your workplace.

The National Inquiry into Sexual Harassment in Australian Workplaces

The global conversation around the prevalence of sexual harassment in the workplace, and the institutional structures that perpetuate it, reached a fever pitch in 2017. The devastating impacts of behavioural misconduct would no longer be disregarded. The real-life and social media campaigns for awareness and policy change, as well as the troubling first-person accounts, dominated the news cycle and evinced an unprecedented public appetite for systemic change.

In June 2018, the Sex Discrimination Commissioner, Kate Jenkins, announced the National Inquiry that would later lead to the Report. This was seen as a groundbreaking, world-first response to the growing issues and movements around workplace sexual harassment. The Inquiry purported to investigate the true extent of the previously hidden nature of sexual harassment in the workplace, assess the harms to society and the costs to business and community, and ultimately produce recommendations for addressing these issues at a Federal level.

The report, its findings, and what it means

The Report’s findings were based upon the fourth National Survey on Workplace Sexual Harassment (‘the Survey’) in 2018, which involved 10,000 workers, 460 written submissions, and 60 public consultations with participants including victims, government agencies, business groups and community bodies. The revealing nature and success of the Survey in informing the Report’s findings has led to the implementation of a similar survey every four years, with the results of the fifth National Survey expected by the end of 2022.

The Survey revealed that one in three Australian workers of all genders had experienced sexual harassment in the previous five years. The identified sexual harassment behaviours range from sexually suggestive comments, intrusive questions, and pressure for intimate encounters to non-verbal leering and gesturing, inappropriate physical contact, and sexually explicit items in the workplace. Crucially, almost half of the respondents reported the same type of harassment happening previously at the same workplace.

The Survey also revealed tangible economic costs to employers because of this harassment. These estimates were considered conservative, as the total financial cost of the associated factors are difficult to calculate definitively and are under-reported in the same way that harassment itself is. Regardless, employers were shown to experience higher staff turnover, losses of productivity, negative impacts on workplace culture, reputational damage, and expenses associated with responding to complaints because of sexual harassment. The Report estimated the cost to employers $3.8 billion in 2018 alone. This demonstrates that an effective response would benefit not only individual victims, workplace culture, and society in general, but also the bottom line of the business community.

Morrison Government implementation

The public pressure resulting from the Report and related scandals within the Morrison Government resulted in the ‘Roadmap for Respect’, which addressed the majority of the Report’s 55 recommendations. Several acts were amended in doing so, including a general commitment to ensure the consistency of various State and Territory anti-discrimination legislation. The complaint system itself was made easier for complainants to navigate, including increasing the time for discretionary termination of complaints to 24 months after the alleged unlawful discrimination took place.

More specifically, s105 of the Sex Discrimination Act 1984 (Cth) now explicitly provides that a person who causes, instructs, induces, aids, or permits another person to contravene the Act shall also be taken to have done the act. This should be of particular interest to employers as there is the possibility of being vicariously liable under this provision for permitting certain acts to take place under their watch.

In addition, conduct that contravenes s94 of the Sex Discrimination Act can now form the basis of a civil action for unlawful discrimination. This means that there may be grounds to sue those subjecting or threatening to subject a detriment to a person, otherwise referred to as victimisation, because the person has made a complaint, or is considering making a complaint, about sexual harassment.

The Report’s recommendations for stop sexual harassment orders were also implemented, making applications available to workers if they reasonably believe that they have been sexually harassed in the workplace. These applications uniquely have no time limit, other than the Commission being satisfied that the harassment occurred and there’s a risk the worker will continue to be sexually harassed by the same individual/s. This applies equally to employees, volunteers, contractors, subcontractors, and apprentices. The Commission’s investigation may result in a range of possible orders, as it deems appropriate. These include preventing further communication between parties, requiring a business to monitor behaviour or update policies, or even making changes to working arrangements.

Albanese Government implementation

When the Government changed hands in the 2022 Federal Election, the Albanese Government took to implementing the remaining recommendations of the Report as one of its first orders of business. These upcoming changes introduced a prohibition on conduct that subjects another person to a workplace environment that’s hostile on the grounds of sex. This again applies to employees, volunteers, contractors, subcontractors, and even clients alike. The conduct in question is that which a reasonable person would anticipate being offensive, intimidating, and humiliating, creating a feeling of unwelcome or exclusion for a particular person because of their sex or characteristics to do with their sex.

The most substantial addition was to introduce a positive duty for all businesses to take reasonable and proportionate measures to eliminate sex discrimination as far as possible. The positive duty will be monitored and assessed by the Australian Human Rights Commission (AHRC) which may initiate action itself to address unlawful discrimination where it reasonably suspects non-compliance. The AHRC will produce guidelines for compliance, conduct inquiries, and may even apply to the Federal Courts for an order to direct compliance with an issued compliance notice. Businesses can either seek reconsideration of a compliance notice or apply to the Federal Courts for review.

To comply with this shift to a proactive approach to addressing sexual harassment, businesses should consider implementing policies and procedures, collecting data, providing appropriate support services, and delivering training and education on the topic of sexual harassment regularly.

Powerful calls for social change and the Government’s response to the Report have resulted in a paradigm shift in the framework of workplace sexual harassment. Businesses need to be aware of the issues and exactly how the expectations that result from them will impact operations. The enforcement powers of the new positive duty, the victimisation and hostile workplace environment provisions as well as the risk of being held to be vicariously liable, require a sophisticated HR response.

For comprehensive advice and guidance on how best to navigate this area, or to ensure your workplace is compliant, please contact our team at HR Assured.

If this information has raised any further questions, or you have another matter you need advice on, please reach out to our experts via our 24/7 Telephone Advisory Service.

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Anthony El Salim is a Workplace Relations Advisor at HR Assured. He assists clients with a range of employment relations and compliance matters via the 24/7 Telephone Advisory Service. He is currently studying for a Juris Doctor.