What happened to Respect@Work?April 29, 2022
In March 2020, the much-anticipated Respect@Work Report was released by the Australian Human Rights Commission (AHRC), the outcome of an 18-month inquiry into sexual harassment in Australian workplaces. The investigation was led by Kate Jenkins, Australia’s Sex Discrimination Commissioner, and her report outlined 55 recommendations for government, business and community sectors to consider in relation to the prevention of, and in responding to, sexual harassment.
The Respect@Work Report revealed that sexual harassment in the workplace is pervasive and widespread. A year later – about the time Brittany Higgins made allegations of sexual assault in her employment with the Federal Government – advocates across the country gathered at #March4Justice rallies, calling on the Federal Government to implement all 55 of Ms Jenkins’s recommendations. One month later in April 2021, the Federal Government responded with its ‘Roadmap for Respect’ committing to implement most, but not all, of the 55 recommendations.
On 2 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect@Work Act) was enacted by the Federal Government, impacting three statutes to what some would argue is a modest degree. The Respect@Work Act is one part of a two-pronged approach implemented by the Federal Government in response Ms Jenkins’s 55 recommendations – the other part being the Roadmap for Respect initiative.
This article explores the key changes to the Federal legislation arising out of the Respect@Work Act and their impact on current and future workplace relations.
Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act)
The Work Health and Safety Act 2011 (Cth) (WHS Act) has long included a positive duty for persons conducting an undertaking or business to take all reasonable steps to prevent work health and safety risks, extending to the risk of sexual harassment. It appears that because of this pre-existing duty in the WHS Act, the Federal Government did not accept Ms Jenkins’s recommendation to insert into the Sex Discrimination Act a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation in the workplace. This decision has caused a significant amount of unrest amongst some groups and parliamentary members, suggesting it may rear its head again in the future. It may be only a matter of time before this positive duty becomes part of an employer’s obligations under the Sex Discrimination Act.
The landscape of the changes to the Sex Discrimination Act are set by the addition of a new legislative objective; ‘to achieve, so far as practicable, equality of opportunity between men and women’. This is designed to guide employers, workers, and courts on the Sex Discrimination Act’s underlying purpose.
The changes which have been enacted to the Sex Discrimination Act are as follows:
- All workers (paid and unpaid) are expressly protected from harassment – the scope of the Sex Discrimination Act has been expressly broadened to apply to, and protect:
– ‘workers’ including all paid and unpaid workers, which extends to employees, interns, volunteers, apprentices, and those who are self-employed.
– all members of State and Federal parliament, judges, and their staff and consultants.
– all members of State and Territory public servants.
- Sex-based harassment – harassment based on a person’s sex is now an express form of unlawful conduct, even though many would argue that this was already prohibited by the Sex Discrimination Act. Harassment based on sex must however be sufficiently serious or sustained to meet the threshold of offensive, humiliating, or intimidating, or seriously demeaning. According to the Respect@Work Explanatory Memorandum, this may include:
– Requesting a person to engage in degrading conduct based on their sex.
– Making inappropriate comments and jokes to a person based on their sex.
– Asking intrusive personal questions based on a person’s sex.
– Making sexist, misogynistic or misandrist remarks about a specific person.
– Displaying images or materials that are sexist, misogynistic or misandrist.
- Liability of accessories to unlawful conduct – the Sex Discrimination Act has, for some time now, prohibited the conduct of a person who ‘causes, instructs, induces, aids or permits’ another person to do an unlawful act of discrimination. This prohibition is now extended to sex-based harassment and sexual harassment, and almost mirrors the ancillary and accessorial liability provisions in other federal anti-discrimination legislation.
- Victimising conduct can give rise to civil and criminal proceedings – this change clarifies that a person who is threatened or subjected to detriment (for example, because they make a complaint to the AHRC) can bring civil proceedings under the Sex Discrimination Act. The Australian Federal Police can still bring criminal proceedings in response to particularly egregious instances of victimisation.
Australian Human Rights Commission Act 1986 (Cth) (AHRC Act)
The relevant change to the AHRC Act is as follows:
- AHRC discretion to terminate complaints extended to 24 months – while there is no time limitation on the making of complaints to the AHRC, the amendments to the AHRC Act mean that the AHRC now has 24 months within which it can terminate a complaint. This is an extension on the six months timeframe previously set by the AHRC Act.
Fair Work Act 2009 (Cth) (FW Act)
There are several amendments which have been made to the FW Act, as follows:
- Stop sexual harassment orders – much like the stop bullying orders in the anti-bullying jurisdiction of the Fair Work Commission (FWC), the FWC now has the power to make ‘stop harassment orders’ with respect to sexual harassment in the workplace. This important change to the FW Act provides a new, fast and low-cost alternative to the sometimes expensive, daunting, and prolonged process of pursuing complaints in the AHRC or in Australian Courts. Under these changes, which came into practical effect on 2 November 2021, complainants may apply to the FWC for orders preventing the risk of future harm (by way of sexual harassment) to the complainant. As with a bullying order, the FWC must be satisfied that the sexual harassment has both occurred and that there is risk of future sexual harassment. The FWC does not have the power to make monetary orders in favour of the complainant, such as awards of compensation, lost wages, or damages.
- Sexual harassment can be a valid reason for dismissal – Before the Respect@Work Act, sexual harassment was not included in the list of conduct that constitutes ‘serious misconduct’ within the Fair Work Regulations 2009 (Cth), and employers were forced to rely on other, less specific definitions such as conduct that causes an imminent risk to health and safety. The changes now brought about by the Respect@Work Act make it clear that sexual harassment can be serious misconduct for the purpose of determining, among other matters, whether a dismissal was harsh, unjust, or unreasonable for unfair dismissal purposes.
- Miscarriage leave – The FW Act now allows an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or employee’s current spouse or de facto partner, has a miscarriage, or if there is a stillborn child in the employee’s immediately family or household.
Despite there being a recommendation in the Respect@Work Report that employers should be subject to a legislative positive duty to proactively take all reasonable steps to eliminate sexual harassment, the new legislative amendments enacted as a result of the Respect@Work Report do not impose this duty. This has led to critics arguing that, without the imposition of the positive duty, systemic causes of sexual harassment may not be addressed by the new laws. Given this widespread and enduring criticism, a positive duty on employers to proactively take all reasonable steps to eliminate sexual harassment in the workplace may one day soon become law.
However, employers in Victoria already have a statutory positive duty to eliminate sexual harassment and other forms of discrimination as far as possible under the Equal Opportunity Act 2010 (Vic). The Victorian Equal Opportunity and Human Rights Commission does not have enforceable powers, however it may investigate complaints of serious sexual harassment, seek orders to compel the production of documents, make public reports about its findings, and intervene in proceedings. As such, there is already some protection in place in that State, but it is not yet universally applicable across the country.
What can employers do to protect their people and business?
As has been the case for a long time, employers can still be held vicariously liable for incidences of sexual harassment by their employees or agents in the course of, or in connection, with their employment. Employers are therefore not immune from a duty under anti-discrimination laws to respond appropriately and proportionately to incidences of sexual harassment in the workplace and take steps to deter it from occurring amongst those in their workplaces.
We recommend that employers use these recent legislative changes as an opportunity to test their policies and procedures to ensure they are relevant, fit for purpose, and take into account the current landscape of laws related to workplace sexual harassment and harassment. Over the last decade, we have seen a growing public recognition of the importance of taking decisive action to stamp out such conduct in the workplace, and organisations should have proactive risk management measures in place to prevent, identify and respond to sexual harassment.
An employer should also ensure its workforce, including its employees, workers, managers, executives, and directors, understand their rights and obligations with respect to workplace sexual harassment, including the long-standing obligations and those new obligations summarised in this article.
FCB can assist employers in a wide range of preventative action, including:
- conducting a compliance and best-practice review of policies and procedures;
- reviewing and updating employment and contractor agreements to ensure employees, volunteers, interns, trainees and apprentices, independent contractors and consultants are contemplated by, and bound to, workplace sexual harassment policies, complaints protocols and codes of conduct;
- planning and delivering up-to-date and best-practice workplace training for all levels of your organisation. This may include live and tailored training for those that play an integral role in sexual harassment prevention in the workplace, including senior managers, executives and directors;
- conducting a formal risk management framework addressing sexual harassment in the workplace; and
- reviewing and providing advice about the organisation’s complaints handling and dispute resolution process in relation to incidences and complaints of sexual harassment and harassment.
In the instance of a particular complaint alleging sexual harassment or harassment in the workplace, FCB can also assist employers by:
- providing advice about how to respond to the complaint in a proportionate, reasonable, fair and appropriately sensitive manner;
- conducting informal and formal investigations in response to the complaint;
- providing guidance and advice on the complaints handling process, including how the employer needs to comply with their obligations under statute (such as workplace, health and safety laws), and in accordance with their policies and procedures; and
- advising on how to best mitigate disputes and litigation that may arise from the complaint.
Now more than ever, navigating workplace sexual harassment and harassment should be a leading priority in the operation of any business. The risks of employers getting it wrong are expansive and serious, carrying the prospect of negative financial consequences, including financial penalties, and reputational damage. There is no better action than preventative action.
If you have a question about managing a sexual harassment or harassment complaint, get in touch with Brittany Byrne.