Respect@Work – Managing Sexual Harassment in the Workplace

Australia was once a global leader in tackling sexual harassment.  In 1984, the Australian Government introduced the Sex Discrimination Act 1984 (the SD Act), which specifically prohibited sexual harassment at work and established the role of Australia’s Sex Discrimination Commissioner.

However, despite these protections being in place for decades, a survey conducted by the Australian Human Rights Commission in 2018 showed that these protections have not been adequate to prevent such behaviours occurring, with sexual harassment in Australian workplaces widespread, and the survey finding that one in three people (two in five women and one in four men) had experienced sexual harassment at work in the previous five years.

Respect@Work

Following this survey, Kate Jenkins, Australia’s current Sex Discrimination Commissioner conducted an inquiry and, on 5 March 2020, released the Respect@Work Sexual Harassment National Inquiry Report (2020) (Respect@Work Report) which concluded that the current legal and regulatory system is no longer fit for purpose.

The Respect@Work Report made 55 recommendations to comprehensively reform how Australia responds to and prevents sexual harassment.

On 15 March 2021, as part of the March 4 Justice, a petition of more than 90,000 signatures was delivered to federal politicians with a key demand for the Federal Government to fully implement the 55 recommendations in the Respect@Work Report.

On 8 April 2021, the Morrison Government published ‘A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces’ (Roadmap) which aims to compliment the National Plan to Reduce Violence Against Women and their Children and outlines the Government has agreed to or noted the 55 recommendations from the Respect@Work Report “wholly, in part or in principle”.

Key Recommendations

Some of the key recommendations from the Respect@Work Report from an employment law perspective that will be adopted include:

1. Extending the time limit for making a sexual harassment complaint to the Australian Human Rights Commission from six months to 24 months.
2. Clarifying the scope of the SD Act to hold parliamentarians and judges accountable for sexual harassment complaints (as well as removing the current exemption of state public servants).
3. Developing targeted amendments to the SD Act to make the system for addressing sexual harassment in the workplace easier for employers and workers to understand and navigate. This will also include introducing changes to ensure the SD Act better aligns with model work health and safety laws.
4. Amending the Fair Work Act 2009 (Cth) (FW Act) to clarify that sexual harassment can be a valid reason for dismissal when determining whether a dismissal was harsh, unjust or unreasonable.
5. Amending the Fair Work Regulations 2009 (Cth) (FW Regulations) definition of serious misconduct to include sexual harassment, clarifying that sexual harassment is a form of serious misconduct for which employees can be terminated summarily/without notice.
6. Clarifying that a ‘stop bullying order’ in the FW Act is available in the context of sexual harassment.

It is worth noting that the law as it currently stands recognises that sexual harassment may provide a valid reason for dismissal and in many cases justifies summary dismissal. However, the amendments to the Fair Work Act and Regulations will likely provide employers greater confidence in proceeding with dismissal.

Given the Roadmap has now been confirmed, we expect to see legislation introduced to address the adopted recommendations from the Respect@Work Report in the near future.  In addition, Prime Minister Scott Morrison has announced that all state and territories will make their own response to the Respect@Work Report by the end of June 2021, which could also result in changes to state and territory legislation.

In parallel, on 19 April 2021, Victorian State Attorney General Jaclyn Symes announced that the Victorian Government will contribute to broader efforts to prevent and tackle sexual harassment in all workplaces, including through the recently established ministerial taskforce on the issue.  Victorian OHS laws are expected to be amended soon to explicitly prohibit sexual harassment with plans to require employers to report sexual harassment incidents in Victoria to WorkSafe, or risk fines of up to $200,000 for failing to do so.

Where to now for employers?

Given strong societal views as to the importance of stamping out sexual harassment and in light of the Respect@Work Report and Roadmap, employers should consider taking proactive steps to prevent and respond to sexual harassment in the workplace, ahead of the proposed legislative changes. This may include:

1. Developing and updating workplace policies to ensure that employees understand that sexual harassment is unlawful and will not be tolerated.
2. Conducting sexual harassment training in workplaces in order for their employees and contractors to properly understand what constitutes sexual harassment, and how to respond to instances of sexual harassment.
3. Taking allegations of sexual harassment seriously and responding as appropriate in the circumstances. This may include conducting workplace investigations (internal or external) and taking disciplinary action up to and including termination of employment where allegations are substantiated.
4. Creating a culture where employees feel comfortable raising concerns regarding sexual harassment with their managers, human resources representatives, or where applicable, an appointed EEO officer, free from adverse action or victimisation.

Employers should stay alert for developments in this area, which may include potential changes to State and Territory based anti-discrimination and WHS legislation once States and Territories respond to the Respect@Work Report. We have a Respect at Work course that will provide your business to be compliant.

First Fair Work Commission Application for Stop Sexual Harassment Order Dismissed

The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 granted additional powers to the Fair Work Commission (FWC) to hear applications by workers for ‘stop sexual harassment orders’ from 11 November 2021.

In the first application of this type, on 24 December 2021 the FWC dismissed an application for a stop sexual harassment order in the decision of THDL which we discuss further below.

Stop Sexual Harassment Orders

As discussed in our previous article, the FWC can issue a stop order to prevent sexual harassment where the FWC is satisfied that:

1. a worker has been sexually harassed at work by one or more individuals; and
2. there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals.

Before granting an order, the FWC will need to be satisfied that, firstly, the harassment has occurred and secondly, there is a risk of future harassment occurring.

Case study: Application by THDL

Background

In the case of THDL, the Applicant (known as “THDL”) filed an application in the FWC for an order that two individuals employed by a neighbouring business in the same warehouse complex stop bullying and sexual harassing THDL.

The two individuals objected to the application on several grounds including that THDL did not meet the definition of “worker”, that they were not at work when the alleged conduct occurred and that there was an intervention order in place against THDL.

Further, and most relevantly, it was accepted by all parties that THDL’s business had moved out of the warehouse complex and the parties would therefore not cross paths again while at work.

FWC Decision

In their decision, Commissioner Yilmaz dismissed the application. In doing so, the Commissioner outlined that as THDL’s place of work was removed from the location where they allege they were the subject to bullying and sexual harassment by the two individuals that previously worked in the same warehouse complex (albeit in a neighbouring business), there is no risk that THDL may be subject to bullying and/or sexual harassment at work. For this reason, the application had no prospects of success and was dismissed on that basis.

Lessons for employers

The THDL decision confirms that there needs to be an ongoing risk of bullying or sexual harassment to obtain a stop order from the FWC.  In other words, an applicant who no longer works with an alleged perpetrator is unlikely to obtain a stop order from the FWC if the conduct is unlikely to continue. This reflects the position under the parallel ‘Stop Bullying Order’ jurisdiction in the FWC.

Employers should consider taking proactive steps to prevent and respond to sexual harassment in the workplace, which can in turn reduce the risks of an application of this type being made to the FWC.

These steps will also assist an employer in demonstrating it has taken ‘reasonable precautions’ in the event an employee or former employee seeks to make a sexual harassment claim to the State equal opportunity commission or the Australian Human Rights Commission, as opposed to an application to stop sexual harassment to the FWC.

This may include:

1. Implementing appropriate policies and procedures on bullying, discrimination and harassment including sexual harassment which meet the extensive legislative and case law requirements.
2. Conducting anti-bullying, discrimination and harassment training for all workers, including what constitutes sexual harassment and ensuring workers understand avenues for reporting cases of this type of conduct.
3. Maintaining appropriate investigation procedures to address reports of bullying, discrimination and harassment, and promptly and consistently following these procedures once a report has been made.

If you require advice on the stop sexual harassment jurisdiction or assistance with reviewing your current workplace procedures or training in relation to sexual harassment at work, HR Legal can help.

Follow the link to be up to date with all Respect@Work with our training course. If you have further questions, feel free to contact us. 

THDL [2021] FWC 6692