Labor will legislate to make it clear that employers have a positive duty to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.
Labor in Government will task the Workplace Sexual Harassment Council to consult with employers, workers, unions and legal experts on the design and implementation of this strengthened legal duty.
The National Inquiry into Sexual Harassment in Australian Workplaces, carried out by Sex Discrimination Commissioner Kate Jenkins, conducted consultations and roundtables across the nation and received 460 submissions from business groups, government agencies, community bodies and victim-survivors of sexual harassment.
The outcome of that comprehensive inquiry, the Respect@Work Report (‘the Report’) was released in March 2020 and includes 55 recommendations for reform.
The Inquiry found that one in three people experienced sexual harassment at work in the past five years, including two in five women and one in four men.
The Inquiry also found that the current legal and regulatory system in relation to workplace sexual harassment is not working to protect employees and reform is urgently needed.
The Commissioner notes in her Report that there was widespread acknowledgement by employers, workers and their representative bodies that current regulation and approaches by employers, which have been in place for decades, have failed to prevent or reduce workplace sexual harassment.
The Report states:
Overwhelmingly, the Commission heard that the current system for addressing workplace sexual harassment in Australia is complex and confusing for victims and employers to understand and navigate. It also places a heavy burden on individuals to make a complaint. Yet most people who experience sexual harassment never report it. They fear the impact that complaining will have on their reputation, career prospects and relationships within their community or industry. Throughout the Inquiry, the Commission heard of the need to shift from the current reactive, complaints-based approach, to one which requires positive actions from employers and a focus on prevention.
In particular, because the current system makes employers vicariously liable for harassment that occurs in their workplace, there are only consequences for employers after sexual harassment has occurred and only if victims are brave enough to risk their career and make a formal complaint – often against their own boss or a senior colleague.
This means too often the incentive is for employers to discourage victims from making complaints, rather than to proactively create a safe working environment, free from sexual harassment, for the benefit of all staff.
A key recommendation to address the current systemic failures and to establish a system focussed on prevention of sexual harassment is set out in Recommendation 17:
Amend the Sex Discrimination Act to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. In determining whether a measure is reasonable and proportionate, the Act should prescribe the factors that must be considered including, but not limited to:
a. the size of the person’s business or operations
b. the nature and circumstances of the person’s business or operations
c. the person’s resources
d. the person’s business and operational priorities
e. the practicability and the cost of the measures
f. all other relevant facts and circumstances.
Labor shares the goal of businesses, workers and the wider Australian community to stamp out sexual harassment in workplaces, and will do so while working to minimise the regulatory burden on businesses by ensuring that any actions required of employers are reasonable and proportionate.
As the Sex Discrimination Commissioner’s report suggests, Labor will also work with the Workplace Sexual Harassment Council to assess whether exceptions for micro and smaller businesses are appropriate. The Workplace Sexual Harassment Council brings together heads of regulatory agencies like Safe Work Australia and anti-discrimination commissions, to improve prevention and response to sexual harassment by improving coordination, consistency and clarity across the key legal and regulatory frameworks.
These reforms won’t place any significant additional burden on responsible employers, who are already meeting vicarious liability and work health and safety requirements, but legal responsibilities will be clearer to make it easier for businesses to follow best practice.
Unlike the Government, Labor takes the Respect@Work Report seriously. That’s why we will not try to sweep the widespread, harmful and hugely costly problem of sexual harassment back under the carpet.
The Government’s Record
The former Attorney General, Christian Porter, left the landmark Respect@Work Report to gather dust on his desk for over a year without taking serious action and he refused to meet with the Sex Discrimination Commissioner to discuss the Report’s recommendations.
When the Government was finally forced to act on the Report – after months of controversy – it claimed in its press release that:
The Australian Government has agreed to (in full, in-principle, or in-part) or noted all 55 recommendations in the Report.
Our response to the Respect@Work report is about creating a new culture of respectful behaviour in Australian workplaces.
The Government even claimed that “Leadership from all levels of government and industry is crucial for ensuring that recommendations are successfully implemented.”
The Government then immediately failed this crucial test of leadership, with experts panning their response for having “massive gaps” and “fail[ing] to commit to urgent legislative changes.”
In particular, the Government refused to implement Recommendation 17 to introduce a proportionate positive duty – claiming “a positive duty already exists” under work health and safety laws.
But submissions to the report found work health and safety regulators “don’t treat sexual harassment as a serious WHS risk” (ACTU). State and territory work health and safety regulators were invited to engage with the inquiry, but only one of the made a formal submission saying: “WorkSafe is not sufficiently resourced and does not have the expertise to adequately address sexual harassment matters.”
Following the Government’s response, the Sex Discrimination Commissioner said it was “a missed opportunity to not introduce a positive duty to take reasonable and proportionate measures to eliminate sexual harassment”.
As the Report makes clear, when one in three Australians has been harassed at work in the last three years the current laws aren’t working.
The Morrison Government’s botched response to the Respect@Work Report is yet another example of it making big announcements and then failing to follow through with the hard work of meaningful reform.