In June 2018, the then Coalition Government announced it would fund the Australian Human Rights Commission to undertake a National Inquiry into Sexual Harassment in Australian Workplaces. This resulted in the Respect@Work: Sexual Harassment National Inquiry Report (2020)>(Respect@Work Report) which made a number of recommendations regarding the legal framework surrounding workplace sexual harassment.
Fast forward to today, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 has commenced and implemented six of the outstanding legislative recommendations from the Respect@Work Report (Amendments).
These changes require employers to take proactive steps to prevent sexual harassment in the workplace, rather than taking reactive steps once sexual harassment has occurred. This includes imposing a positive duty in the Sex Discrimination Act 1984 that requires employers to take reasonable and proportionate measures to eliminate, so far as possible, certain forms of unlawful sex discrimination in the workplace.
The Respect @ Work Framework
The Good Practice Indicators Framework for Preventing and Responding to Workplace Sexual Harassment (Framework) guides employers on how to comply with the new Amendments. The Framework suggests focusing on two key areas – prevention and response.
To prevent sexual harassment, the Framework highlights the need for businesses to focus on:
- strong leadership to create a safe workplace environment – the Framework encourages organisations to implement a strong internal governance framework which holds leaders responsible for preventing and responding to sexual harassment in the workplace. This level of accountability is intended to encourage strong leadership in the area and to reflect an organisation's commitment to preventing sexual harassment in the workplace
- risk management – the Framework encourages employers to approach sexual harassment in the same way they would approach any other work health and safety risks. Similar to other hazards in the workplace, employers should identify risks relating to sexual harassment and work to control and eliminate these risks
- culture – employers should review their policies to ensure they are up to date with legislative changes. Having strong policies that clearly state an organisation's stance on sexual harassment and the consequences for engaging in such behaviour contribute to a culture of trust and respect
- education – employers should ensure their employees are aware of the Amendments and their obligations. Engaging in education and training with employees will develop a collective understanding of expected workplace behaviours and processes.
Despite all reasonable precautions being taken, sexual harassment may still occur in the workplace. The Framework acknowledges this as a reality and provides guidance to organisations regarding appropriate responses:
- support – employers should provide trauma-informed support to workers who have been harassed and prioritise their wellbeing
- reporting – employers should increase the options for workers to report sexual harassment and address barriers to reporting. Engaging in a formal investigation may be intimidating for a victim and deter them from reporting harassment. Implementing a reporting process where victims feel safe and supported is important in increasing accessibility
- collect data – organisations should collect data at the workplace and industry level to understand the prevalence, nature and impacts of workplace sexual harassment and evaluate the effectiveness of initiatives designed to address it.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.