The Australian Human Rights Commission has conducted four surveys on the experience of sexual harassment, beginning in 2013 and the latest in 2018 . The 2018 survey showed a significant increase in the experience of sexual harassment in the workplace, with almost two in five women and one in four men experiencing sexual harassment in the workplace. This survey prompted The National Inquiry into Sexual Harassment in Australian Workplaces, which released their report in January of 2020. The “Report” found that sexual harassment is extremely prevalent in Australian workplaces. The Report also found that sexual harassment undermines workplace productivity and has a significant economic cost to Australian society, with this cost being estimated at $523.6 million in 2018.
The Report highlights several negative affects of workplace sexual harassment, these being:
- staff turnover;
- negative workplace culture;
- resource expenditure to deal with sexual harassment; and
- damages associated with claims brought against a business for sexual harassment.
Currently sexual harassment in the workplace is dealt with by the Sex Discrimination Act 1984, (SD Act), which makes sexual harassment unlawful in employment. Each Australian State has legislation which also deals with sexual harassment in the workplace. In Queensland the Anti-Discrimination Act, Human Rights Act and Workplace Health and Safety Codes of Practice make sexual harassment unlawful and provide guides for what sexual harassment is and how to manage it. This two tiered approach allows specific education and training to be targeted within workplaces through State legislation while maintaining national standards through Federal legislation. Whilst the Report mainly focuses on the Federal legislation, it comments on State frameworks and makes some recommendations to improve the approach to sexual harassment in the workplace.
The SD Act defines sexual harassment as, any unwelcomed advance, unwelcome request for sexual favours or, other unwelcomed conduct of a sexual nature in relation to the person harassed.
The Report highlights that there is disparity between the State and Federal definitions of sexual harassment, and that this disparity creates confusion for victims and employers.
The Report recommended that the Federal legislation remain and the new regulation schemes which will be introduced through various councils, associations, and groups, draw from the SD Act to ensure a strong regulation foundation without confusion.
The Report highlights that a collaboration between primary prevention, government initiatives and legal frameworks are required along with prevention and responses within the workplace.
The Australian Human Rights Commission has made several recommendations to prevent and respond to sexual harassment in the workplace.
By way of brief summary, we note the recommendations which might be of interest include:
- Amendments of the SD Act should occur to introduce a positive duty for employers to take reasonable measures to eliminate sexual harassment, discrimination and victimisation in the workplace.
- Board members and company officers should be educated on gender equality and sexual harassment and the need for good governance in the work place to address this. This training will be assisted by the Australian Institute of Company Directors and the Governance Institute of Australia, consulting with the Workplace Sexual Harassment Council who will collaborate to create educational material.
- Good practice indicators for measuring and monitoring sexual harassment be created by the Workplace Gender Equality Agency and the Workplace Sexual Harassment Council. The Commission recommends that external reporting be made mandatory by amendments to the Workplace Equality Act 2012 which would require organisations to report gender equality indicators to the Workplace Gender Equality Agency. Methods will be developed to measure and monitor sexual harassment prevalence, prevention and response.
- The Australian Securities Exchange (ASX) should introduce sexual harassment indicators for listed companies, this may include specific mention of sexual harassment on company code of conducts. And information about measures taken to prevent sexual harassment be included in the requirement for a diversity policy.
- Training should be put in place which for people in roles which advise on sexual harassment in the workplace. Specific resources will be created by the Workplace Sexual Harassment Council to build skills and capacity to prevent workplace sexual harassment, be informed on trauma and inform on the nature, drivers and impacts of sexual harassment.
- Unions, employer associations, employers and other industry bodies should collaborate to industry wide professional initiatives to address sexual harassment in Australian workplaces. This will be assisted by Respect@Work a new employer and employee association, which will help to deliver information, education and resources online.
To address the recommendations of the Report, in May of 2021, Queensland's Attorney-General requested that the Queensland Human Rights Commission undertake a review of the Anti-Discrimination Act 1991. This review will focus on the requirement of laws to be updated to address sexual harassment, discrimination and gender equality. As well the review will investigate how legally best to implement the above recommendations.
Businesses should stay aware of the changes made to legislation and the requirements imposed upon them by these changes. As per the recommendations employers should review and consider improving sexual harassment training within the workplace to update management skills on preventing sexual harassment in the workplace.
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