When Sex Discrimination Commissioner Kate Jenkins first handed down her momentous Respect@Work Report, it did not receive the attention it deserved.
Jenkins’ recommendations were designed to keep Australians safe at work. To deliver on our basic human right to participate in paid employment, free from the sexual harrassment that far too many have and continue to experience.
Last week, legislation enacting Jenkins’ report passed both Houses of Parliament, representing an enormous shift in political will and public opinion.
Among other important changes, this legislation puts the onus on employers to be proactive in preventing and eliminating workplace sexual harassment.
What does that mean? If an incident of sexual harrassment is alleged then employers can be liable for the inappropriate behaviour of their employees if they cannot point to sufficient active steps taken to prevent it.
While advocates, lawyers, and unions are celebrating this new positive duty, some employers are unimpressed. Instead of embracing the chance to make their workplaces safer, there is a chorus of powerful voices questioning the effect of the proposed laws. Voices that have likely been swayed by the politicking that has gone on around this issue.
It’s worth remembering that the former Morrison Government enacted only six of the 12 legislative recommendations from the Respect@Work Report back in 2021. They argued existing workplace health and safety laws already included a positive duty for employers to prevent harassment.
However, the Respect@Work Report found that these laws aren’t explicit enough, and existing legal frameworks focus too heavily on responding to incidents, rather than preventing them. Indeed, that employers take appropriate responsibility for prevention lies at the heart of the Respect@Work Report’s recommendations.
With one in three Australians experiencing sexual harassment at work (and under-reporting rife), employers can safely assume that inappropriate behaviour is happening in their workplace.
Few employers would argue that preventing, as well as responding to, workplace sexual harrassment, is not a reasonable expectation. Perhaps the disparate response is actually about what these new laws will mean in practical terms.
So let’s break that down.
A preventative approach is crucial because sexual harassment is not the result of just a few bad eggs but more insidious cultural and systemic factors. Workplace environments can develop in a way that effectively enables sexual harrassment, especially when respect for women and the role of women in decision making is considered optional.
With one in three Australians experiencing sexual harassment at work (and under-reporting rife), employers can safely assume that inappropriate behaviour is happening in their workplace. It’s simply not enough to rely on a reactive complaints-based response to individual incidents of sexual harrassment.
What organisations will need to do to demonstrate they have taken proactive steps to prevent harassment, is not entirely clear. Nonetheless, legal experts suggest there are plenty of ways to start getting their ducks in a row.
Employers can start by implementing leading practice policies and clearly and regularly communicating these to all employees. Conducting regular risk assessments to mitigate any factors that may cause discrimination or harassment, is essential to identifying potential problems early.
Educating employees to understand sexual harassment, gendered drivers, and how to respond as a bystander or a victim, is proven to have an impact on workplace culture. And, ensuring timely, victim-centred complaints procedures, grievance mechanisms and whistle-blower avenues will have a preventative as well as responsive benefit.
The Bill allows a 12-month buffer for the Commission to help organisations understand and prepare for the new obligations before they start enforcing compliance – such as the Respect@Work website launched recently. To this end, Future Women hosted a free webinar last week. An expert panel broke down the implications of the legislation and how your organisation can stay ahead of the curve in meeting the new obligations. A recording of the webinar is available here.
Under the Bill, the Commission will have new powers to investigate compliance if they suspect an organisation is not meeting its positive duty. This may be because of individual disclosures or media reporting. They can give recommendations, issue compliance notices (including publicly naming companies) and direct that notice to be enforced at court.
Kate Jenkins reminded employers this month that the Commission’s aim is to support and educate, not name and shame, employers. Responsible and proactive employers have nothing to worry about. Indeed, this is an opportunity to take steps that will keep more employees safe from harm.
