What is the Government Doing About Sexual Harassment in 2021? We Need Action Now!!

2021 has seen the dawn of a new era of sexual harassment reforms.

In 2020, the Australian Human Rights Commission published ‘Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces’. This report investigated the current nature and prevalence of sexual harassment in Australian workplaces and proposed 55 Recommendations to better prevent sexual harassment and facilitate the recovery of victims.

On 8 April 2021, the Australian Government published ‘A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces’, a systematic plan to implement the 55 Recommendations of the Respect@Work Report. This article will outline several of the key initiatives, that is well-needed in the fight to eliminate sexual harassment in Australian workplaces.

Respect@Work Council

One of the key pillars of the Australian Government’s Roadmap is the Respect@Work Council, which has already been established in accordance with Recommendation 14 of the Respect@Work Report.[1] The Council is chaired by the Sex Discrimination Commissioner, Kate Jenkins, and is comprised of representatives from key regulatory bodies at both the Commonwealth, State, and Territory levels. These bodies include the Fair Work Ombudsman, the Fair Work Commission, Safe Work Australia, and the Australian Council of Human Rights Authorities. The Australian Government has already committed $2.1 million over the next three years to fund the initiative, and there is a prospect of further funding as part of the 2021/22 Federal Budget.

The Council was established in the interests of creating a more consistent, accessible, and proactive approach to workplace sexual harassment. Presently, it may be difficult for potential complainants to navigate between the Federal and State avenues for pursuing a sexual harassment complaint. This Council has been established to facilitate a coordinated approach and ensure that all bodies adequately manage sexual harassment matters. It is also aimed that the Council will act as a body overseeing the implementation of other initiatives and providing guidance on what can be done to prevent sexual harassment and how the recovery of victims can be promoted.

The Commonwealth Government also committed in their Roadmap to granting the Respect@Work Council various additional responsibilities, including:

  • Advising the Commonwealth Government on best practices for Non-Disclosure Agreements (NDAs),[3] as per Recommendation 38 of the Respect@Work Report.[4] At present, NDAs may deprive a victim of their voice and stifle conversations on sexual harassment.
  • Engaging with media organisations, including the Australian Communications and Media Authority (ACMA), the Australian Press Council (APC), and Our Watch to establish and promote clear guidelines on how to report on sexual harassment in the media, [5] following Recommendation 13 of the Respect@Work Report.[6] This initiative is aimed to encourage proactive public discourse on sexual harassment, in the efforts of prevention.

Fifth National Survey on Sexual Harassment

In 2022, as scheduled every four years, a fifth National Survey on Sexual Harassment will take place, funded by the Australian Government to gather and share sexual harassment data. Data from the previous National Surveys have been instrumental in highlighting the prevalence and nature of workplace sexual harassment and significantly contributed to the findings of the Respect@Work Report. It is hoped that this fifth survey will shed further light on how sexual harassment occurs in Australian workplaces and how it can be combatted.

Education and Training for Regulatory Bodies

Implementing Recommendations 34, 36, and 37 of the Respect@Work Report, the Australian Government has committed to providing education and training to staff of the Fair Work Commission, the Fair Work Ombudsman, Safe Work Australia, Workplace Health, and Safety regulators, and workers’ compensation agencies. This training is aimed to enable these staff to manage sexual harassment matters with more consideration and insight, thereby seeking to mitigate further harm to victims.

Implementation of Clearer Referral Pathways

In their Roadmap, the Australian Government has also committed to implementing clearer referral pathways between the regulatory bodies, addressing recommendations 51 and 52.[7] This means that individuals seeking help from one agency are appropriately referred to the best avenue for advice and support in their case, regardless of which organization they turned to for assistance first. This has been described as a ‘Joined-up approach’, ensuring that regulatory schemes and referral pathways are more accessible and consistent.

Addressing Historical Workplace Sexual Harassment

Recommendation 27 of the Respect@Work Report recommended supporting victims in disclosing historical workplace sexual harassment.[8] The Report suggested a disclosure process that would enable victims to have their experiences heard and documented, with the objective of promoting recovery. In response, the Australian Government has committed to evaluating existing counseling services for victims of historical sexual harassment, both at Commonwealth, State, and Territory levels, to see whether matters are adequately disclosed in a confidential and anonymous manner to promote recovery.[9] To this end, the Australian Government has additionally committed to ensuring employers are able to access guidance materials, informing them how they can support victims of historical workplace sexual harassment.[10]

Amendments to the Fair Work System

Recommendation 28 of the Respect@Work Report recommended that the Fair Work system be reviewed to clearly prohibit sexual harassment, as per the definition in the Sex Discrimination Act.[11] In response, the Australian Government has indicated that they will conduct the review once the govt’s response to Recommendation 16 has been implemented and its impact assessed.

Following Recommendation 29, the Fair Work Commission is also in the process of establishing a ‘Stop Sexual Harassment Order’, which is the equivalent to a ‘Stop Bullying Order’, and is meant to have a restorative aim so the victim can continue their employment.[12]

Furthermore, the Australian Government has also committed to Recommendation 30 of the Respect@Work Report that section 387 of the Fair Work Act 2009 (Cth) be amended to clarify that sexual harassment is a valid reason for dismissing an employee in determining whether the dismissal was harsh, unjust or unreasonable.[13] Additionally, following Recommendation 31, the definition of ‘serious misconduct in the Fair Work Regulations 2009 (Cth) will likewise be amended to include sexual harassment. [14] The Australian Government has noted that this amendment will clarify that sexual harassment will be a valid reason for summary dismissal (ie. dismissal without notice).[15]

Other Legislative Amendments

The Australian Government has also adopted Recommendation 20 and has agreed to amend section 105 of the Sex Discrimination Act 1984 (Cth) to clearly apply to sexual harassment.

Lastly, Recommendation 25 proposed an amendment to the Australian Human Rights Commission Act 1986 (Cth) to insert a cost protection provision, thereby amending the default cost arrangements applied which presently can mean if unsuccessful, a complainant could be required to pay the costs of the respondent, if the court so decides. In response, the Australian Government has indicated that they will review cost procedures appropriately and in accordance with the matters in the Respect@Work Report.[16]

In summary, these initiatives appear to be a significant step in the right direction to better addressing workplace sexual harassment. The success of each initiative will be revealed in time, but nevertheless, victims can have hope that their matters will be more appropriately addressed and their recovery prioritized.

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[1] Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 2020) (‘Respect@Work Report’) 43.

[2] Australian Government, A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (Report, 2021) (‘Roadmap’) 7.

[3] Ibid 8

[4] Respect@Work Report (n 1) 47.

[5] Roadmap (n 2) 8-9.

[6] Respect@Work Report (n 1) 42.

[7] Roadmap (n 2) 10.

[8] Respect@Work Report (n 1) 46.

[9] Roadmap (n 2) 11.

[10] Ibid 11.

[11] Respect@Work Report (n 1) 46.

[12] Ibid 46.

[13] Ibid 46; Roadmap (n 2) 15.

[14] Respect@Work Report 46.

[15] Roadmap (n 2) 15.

[16] Roadmap (n 2) 13.

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