After years of campaigning by unions, gender equality advocates, and A Whole New Approach, amoungst others the Federal Government has introduced a Bill to the Senate which aims to simplify and streamline sexual harassment legislation. Sexual harassment in the workplace is unlawful but it is still an ongoing and challenging issue in Australian workplaces.
These proposed legislative changes aim to provide greater protection for employees from sexual harassment in the workplace. Although the rationale behind the change is hopeful, the Bill proposed by the Federal Government is a gross injustice to sexual harassment victims across the nation and falls short in providing sufficient protection to employees.
The proposed Bill is in response to the Respect@Work Report (the Report) presented to the Government by the Sex Discrimination Commissioner, Kate Jenkins, in March last year. The central aim of the Respect@Work Report was to provide recommendations to the Federal Government about how the current legislative schemes need to be amended to better integrate and align the anti-discrimination, workplace and WHS systems and put in place a proactive, preventative approach to sexual harassment.
Australian Prime Minister, Scott Morrison, and Attorney-General, Michaelia Cash, stated that the government would accept all of the report’s 55 recommendations either “wholly, in part, or in principle” and introduce changes before the next budget. The proposed Bill does not accept the recommendations “wholly, in part, or in principle” but instead, proposes counterproductive and inefficient regimes in response to the recommendations or ignores them in their entirety.
Sexual Harassment and Serious Misconduct
The Fair Work Act 2009 (Cth) does not expressly prohibit sexual harassment. Instead, it can be indirectly raised through a number of provisions under the Fair Work Act 2009 (Cth). This lack of an express prohibition creates ambiguity and gaps in how sexual harassment is handled under the Fair Work Act 2009 (Cth).
The bill proposes changing the definition of “serious misconduct”, under the Fair Work Act 2009 (Cth), to include sexual harassment and making sexual harassment a valid reason for an employee to be terminated. Although this is a positive step, it is concerning that sexual harassment does not currently fall within the meaning of “serious misconduct”. It is also unclear whether sexual harassment being included in this definition will reduce the prevalence of sexual harassment in workplaces.
Fair Work Regulation 1.07 defines serious misconduct as conduct that is wilful or deliberate and that is inconsistent with the continuation of the employment contract. It is also conduct that causes serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business. Serious misconduct includes theft, fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions consistent with the employment contract. The Fair Work Commission has held that sexual harassment constitutes conduct which is inconsistent with the continuation of the contract of employment and conduct that causes serious and imminent risk to the health or safety of a person. Therefore, employers have always had the ability to dismiss an employee for sexual harassment yet, sexual harassment in the workplace is still rife. Thus, including sexual harassment in the definition is beneficial but it is long overdue and will not deter employees from engaging in such unlawful conduct. Stealing is unlawful and illegal yet so many people still do it.
Adverse Action and Sexual Harassment
The General Protections provisions under Part 3-1 of the Fair Work Act 2009 (Cth), provide workers with protections across several areas. Two general protection provisions are of most relevance to sexual harassment.
The provisions prohibit employers from taking adverse action against an employee because of a workplace right or industrial activities and protects against discriminatory treatment on the basis of protected attributes and sham arrangements. However, as sexual harassment is not an explicit protection under the Fair Work Act 2009 (Cth), it can only be protected indirectly, which is uncertain.
Some employees have attempted to argue that sexual harassment is a protected attribute through sex discrimination. Section 351(1) of the Fair Work Act 2009 (Cth) states that “an employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin”.
The courts have held that sexual harassment may constitute sex discrimination, which is a protected attribute, where a female Applicant has been treated less favourably than her male colleagues in being sexually harassed. Further, it has also been held that sexual harassment may be considered adverse action due to the Applicant being female and thus discriminated against on the basis of her sex.
In Wroughton v Catholic Education Office Diocese of Parramatta, the Court noted that:
“[Section] 351(1) of the Fair Work Act does not itself employ the term ‘discrimination’. Nor does [section] 351 contain any prohibition upon (in the present case) ’sex discrimination’, including ‘sexual harassment’. The prohibition in [section] 351(1) is a prohibition upon an employer taking ’adverse action against a person…’.”
For a victim to access the protection offered by section 351 in relation to sexual harassment, the Federal Court or Federal Circuit Court must be satisfied both that the sexual harassment amounted to adverse action—and that the adverse action was directed towards the victim because of their sex.
Although the Fair Work Act 2009 (Cth) does not expressly prohibit sexual harassment, the bill already proposes changing the definition of “serious misconduct”to include sexual harassment. In addition to this, the definition of adverse action should also be amended to include sexual harassment as a form of discrimination against a person by reason of the person’s sex. Enacting such an express provision would provide greater protection against sexual harassment and reflect the decisions under common law.
Order to Stop Sexual Harassment
Another proposed legislative change relates to the Fair Work Commissions having the jurisdiction to deal with sexual harassment disputes. The Federal Government has proposed modifying the existing anti-bullying laws under the Fair Work Act 2009 (Cth), to allow for “stop sexual harassment” orders. Part 6 – 4B of the Fair Work Act 2009 (Cth), which deals with orders to stop bullying, will now be extended to allow a worker who has been sexually harassed (as defined in section 28A of the Sex Discrimination Act 1984) at work, by one or more individuals, to apply to the Fair Work Commission for an order to stop the sexual harassment. This measure operates in the same way as the current anti-bullying orders, only preventing future harm and with limited remedies available to the affected employee.
An order can only be granted if the Commission is satisfied that sexual harassment has occurred and if there is a risk of the harassment occurring again. In contrast to the anti-bullying orders, repeated sexual harassment conduct is not required for an order to be made.
Again this may be perceived as a positive step for sexual harassment victims but this too is long overdue. The Fair Work Commission was given jurisdiction to hear and determine anti-bullying applications since 1 January 2014 yet orders to stop sexual harassment are only now being proposed and considered.
In addition, these laws will give the Fair Work Commission the power to make any order it considers appropriate to prevent a worker from being sexually harassed at work, aside from making an order for monetary compensation. Compensation or damages is a frequently sought remedy for sexual harassment as the spectrum of mental harm that can be experienced by victims of sexual harassment ranges from depression, anxiety and post-traumatic stress disorder (PTSD), any of which can be debilitating for a significant period.
The Respect@Work Report indicates that in 2017-18, 32% of the employment-related sexual harassment complaints that settled during conciliation at the Australian Human Rights Commission, resulted in payment of financial compensation to the complainant. In the Anti-Discrimination Board of NSW, 64% of the employment-related sexual harassment complaints that settled during conciliation, also resulting in compensation.
Although the Respect@Work recommendation was to introduce a “stop sexual harassment”order equivalent to the “stop bullying order”, this eliminates the employees’ ability to seek compensation for their pain and suffering as a consequence of the sexual harassment endured. This is arguably counterproductive as the employee can lodge a claim of sexual harassment under anti-discrimination laws, in their respective state or territory jurisdiction, and seek monetary compensation. Many employees do not lodge their claims in these jurisdictions, given the delay in processing, conciliating and hearing the complaints. An employee may have to wait months before a conciliation conference is held and their issues are addressed. In addition, these bodies only assist the parties in conciliating the matter and cannot make binding orders. If the parties are unable to reach an agreement during conciliation in these jurisdictions, the matter is referred to the relevant Tribunal or Industrial Relations Commission where a binding order can be made. This could take further months or years.
The “stop sexual harassment”orders in the Fair Work Commission will listed for conciliation within a matter of weeks and an order is made within months. Thus, this is a quicker process to combat the urgent issue of sexual harassment. Nevertheless, it is unclear why an employee cannot seek compensation through these orders when it is available under state and federal anti-discrimination laws. Affected employees should not be robbed of their right to seek justice by way of compensation for their pain and suffering.
Legal Costs for Victims
The “stop sexual harassment” orders in the Fair Work Commission are generally heard by Commission members. This can be extremely intimidating for employees or victims who are making an application for an order to stop the sexual harassment they are enduring. Thus, an employee may need to engage a lawyer or representative/paid agent to give themselves the best chance of succeeding in their claim. Nevertheless, lawyers or representatives/paid agents will charge the employee fees which they may not be able to afford. If they cannot afford representation, they will be forced to pursue the matter self-represented or not pursue it at all.
If the “stop sexual harassment” regime is similar in framework to the “order to stop bullying”, there will be a difficult legal test for the employee to satisfy. Given the Fair Work Commission is an independent government body, they are impartial. This means that the agents or members of the Fair Work Commission, such as are not on either side. This is particularly detrimental to the employee as they are likely already traumatised from enduring the sexual harassment and now they have to appear before a Commission member and their employer, who allowed them to be sexually harassed.
Although there is no obligation for an employee to engage a lawyer or representative/paid agent, given the complexity of the matter and the employees unfamiliarity with the Fair Work Act 2009 (Cth), they may be disadvantaged. Thus, the Federal Government should have devised a regime in which these orders are easily accessible, with or without representation. These proposed orders will only provide justice to those who can afford it and the Federal Government is allowing it.
Prevalence of Sexual Harassment in Australian Workplaces
The Australian Human Rights Commission (AHRC), Australia’s national human rights institution, have conducted a study on a group of volunteer interviewees about sexual harassment. The findings demonstrate that 18 percent of the interviewees have personally experienced sexual harassment in the workplace at some time and 50 percent stated that it continued for up to 6 months. 72 percent of the targets of sexual harassment were women and 28 percent were men. The study also found that the greatest prevalence of sexual harassment in the workplace occurs among women younger than 45 years of age and employees who have been at a workplace for less than 12 months appear to be more likely to experience sexual harassment.
Although this study was conducted on a volunteer basis, it is reasonable to assume that many victims never come forward to report the sexual harassment and they are suffering in silence. The study indicates 31 percent of those who did not report the sexual harassment experienced stated that they “did not think that the harassment was serious enough” to warrant reporting, 26 percent stated that they “took care of the problem” themselves and almost half expressed a lack of faith in the grievance process as one of the reasons for not reporting it.
Employers are under an obligation to prevent sexual harassment in the workplace by enforcing and maintaining vigorous policies and procedures.
As an employer, you may be held legally responsible, under vicarious liability, for acts of sexual harassment committed by your employees. Federal and State legislation makes employers liable for acts of sexual harassment unless they have taken all reasonable steps to prevent it from taking place. While there is no uniform standard expected of employers in taking all reasonable steps, they must at least:
- have an appropriate sexual harassment policy which is effectively implemented, monitored and communicated to all workplace participants
- take appropriate remedial action if sexual harassment does occur
Aforementioned, many sexual harassment victims do not come forward due to the lack of faith in their employer’s grievance process. Given there is no uniform standard amongst employers, it is pertinent that employees have effective external government bodies to which they can complaint to about unlawful sexual harassment. These legislative amendments and orders to “stop sexual harassment” orders, are not enough. They are counterproductive and make it extremely difficult for employees to come forward with their grievances. The Federal Government needs to do more to protect the employees of our national workforce and create a safe work environment for everyone, which is free of sexual harassment. In addition, the Federal Government needs to establish a more efficient manner in which employees can bring forward their claims and seek justice to remedy the unlawful sexual harassment they have been subject to.
 Birch v Wesco Electrics (1966) Pty Ltd (2012) 218 IR 67 ; Aldridge v Booth (1988) ALR 1 -.
 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, 247.
  FCA 1236, .