You will no doubt have seen in the media that the Australian Human Rights Commission (Commission) has launched an inquiry into sexual harassment in Australian workplaces (Inquiry). It seems that the 'watershed' moment that the #MeToo campaign was hailed as, has indeed driven the momentum to keep the issue alive and for meaningful action to come from it.

There can be little argument that a culture that tolerates, condones or rewards inappropriate conduct or the wrong behaviours creates real and significant risk for an organisation – from a legal, commercial and reputational perspective. It is essential, both at Board and executive level, that there is an awareness and understanding of the organisation's culture or cultures and the risks that arise through such a culture and, most importantly, that steps are taken to mitigate or remove those risks. Indeed, organisational culture and behaviours that are rewarded, encouraged or ignored, have been a key focus in the Financial Services Royal Commission and the Royal Commission into Institutional Responses to Child Sexual Abuse.

This focus is now moving to sexual harassment in the workplace. As Kate Jenkins, the Sex Discrimination Commissioner said, when she announced the Inquiry, which is believed to be a world first:

"These personal accounts [of men and women telling their stories of sexual harassment] have made clear the devastating impact sexual harassment can have on individuals' lives, as well as the significant costs to business and the community. This spotlight on sexual harassment has turned the tide and created a clear and unprecedented appetite for change."

Focus of the Inquiry

The Inquiry will review and report on:

  • a national survey of the prevalence, nature and reporting of sexual harassment in Australian workplaces, by sector;
  • online workplace-related sexual and sex-based harassment and the use of technology and social media to perpetrate workplace-related sexual and sex-based harassment;
  • the use of technology and social media to identify both alleged victims and perpetrators of workplace-related sexual harassment;
  • the drivers of workplace sexual harassment (for example, are some people more likely to experience sexual harassment due to particular characteristics of the individual, or are some workplace characteristics more likely to increase the risk of sexual harassment);
  • the current legal framework with respect to sexual harassment;
  • existing measures and good practice being undertaken by employers in preventing and responding to workplace sexual harassment, both domestically and internationally; and
  • the impacts on individuals and business of sexual harassment, such as mental health, and the economic impacts such as workers compensation claims, employee turnover and absenteeism.

How will the Inquiry operate?

The fourth national survey into workplace sexual harassment is currently being undertaken. It is expected that the results will be published in August. It is now 6 years since the Commission last undertook a survey and it is anticipated that the reported instances of sexual harassment in the workplace will have risen significantly. The Commission will analyse these results as a cornerstone of the Inquiry and will build on this by:

  • conducting a public consultation in major capital cities (and some regional towns) later this year (likely October);
  • inviting and reviewing submissions from interested parties; and
  • undertaking in depth research on sexual harassment.

It is expected that the Inquiry will take 12 months. The Inquiry will ultimately produce a report (Report) making recommendations to address sexual harassment in Australian workplaces. It is to be anticipated that the Report will break down their findings into an industry focus, identifying what the drivers are in certain industries that make sexual harassment more prevalent than others. The Commission will not be investigating or making findings about individual allegations of sexual harassment. Its focus will be on systemic issues in Australian workplaces. That being said, it is to be anticipated that people who have made allegations of sexual harassment will bring them and their employer to the attention of the Commission. It remains to be seen what the Commission's approach will be to employees who may have signed a confidentiality agreement or deed of release in respect of such allegations.

Ongoing review

Three years after the release of the Report, the Australian Human Rights Commission will:

  • conduct an assessment of any changes in the prevalence, nature and reporting of sexual harassment in Australian workplaces since the Inquiry, and
  • make any further recommendations necessary to address sexual harassment in the workplace.

What next?

There will therefore be an opportunity for all employers to make submissions to the Commission focusing on their experiences, issues and concerns. We will provide regular updates in respect of the Inquiry as further details become available, including the timing of each of the stages.

We also plan to undertake a survey of our clients, which you will be invited to participate and we may use this as the basis of our own submission to the Commission. We are keen to hear from your organisation and are available to support and assist if you would like to be involved in the consultation process and/or make submissions on behalf of your organisation – more details to come in our next update.

Read more in our earlier article #MeToo and #Timesup – What Now for Employers?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.