Written by Amie Frydenberg, Emma Purdue and Anastasia Caris
Accounts of workplace sexual harassment are all too frequent in the news these days ─ and yet, they represent the small number of incidents that are reported.
Sexual harassment in the workplace has far-reaching impact; it costs Australian organisations an estimated $3.5 billion per year as a result of lost productivity, staff turnover, negative impact on workplace culture, reputational damage, and resources associated with responding to complaints.
Under changes to federal and state legislation soon to come into force, organisations will be required to take proactive steps to prevent misconduct before it occurs. Certain obligations already exist under safety legislation and some state-based anti-discrimination laws. Further changes will impose additional obligations on employers.
If you do not already have systems in place in your organisation to prevent and manage workplace sexual harassment, now is the time to act.
The positive duty
The introduction of a national, positive duty on employers under the Sex Discrimination Act 1984 (Cth) (SD Act) to proactively prevent sexual harassment in the workplace was recommended in the Respect@Work report, the product of a 2018 national inquiry into sexual harassment in Australian workplaces. This duty will require employers to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination and victimisation.
In September 2022 Australia’s newly-elected Labor Government tabled its proposed bill to address sexual harassment at work, including imposing the positive duty on employers. The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect at Work Bill 2022) implements seven recommendations from the Report.
Among the changes, the Respect at Work Bill 2022 will introduce a positive duty as follows:
“an employer or a person conducting a business or undertaking must take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible“
Consequently, employers must move from responding to conduct that has already occurred, to proactively taking steps to prevent conduct before it occurs. What constitutes “reasonable and proportionate measures” for an employer or other person conducting a business or undertaking (PCBU) will vary depending on the size, nature and circumstances of the organisation, as well as resources, practicality and costs. The positive duty complements the protections already contained in the SD Act, including prohibitions on sex discrimination in employment; sexual harassment of workers; and harassment on the ground of sex of workers.
Employers and PCBUs will have a positive duty to eliminate conduct that includes:
- sexual harassment (unwelcome conduct of a sexual nature);
- harassment on the ground of sex (unwelcome conduct based on the sex of the person, but not necessarily sexual in nature);
- discrimination on the ground of a person’s sex (different treatment based on the sex of the person);
- conduct that subjects a person to a hostile workplace environment on the ground of sex (that is, conduct that results in an offensive, intimidating and humiliating environment for people of one sex, but not necessarily directed at a person); and
- acts of victimisation that relate to complaints, proceedings, assertions or allegations in relation to conduct in points 1 to 4 above.
The Respect at Work Bill 2022 will also give the Australian Human Rights Commission new powers to monitor and address compliance with the positive duty. This includes the power to conduct inquiries into suspected systemic issues, give compliance notices, or enter into enforceable undertakings with employers. The new powers for the Commission will come into effect 12 months after the Respect at Work Bill is enacted into law, to allow employers sufficient time to understand and comply with the new positive duty.
Work health and safety obligations
A positive duty to prevent sexual harassment in the workplace already exists under the Work Health and Safety Act 2011 (Cth) (WHS Act) and Model WHS Laws adopted in a number of states and territories, as well as under the Equal Opportunity Act 2010 (Vic). Under this legislation, there is a work health and safety duty to eliminate or minimise the risks of sexual harassment and harassment on the ground of sex in the workplace.
The Model WHS laws (adopted by Queensland, New South Wales, the Australian Capital Territory, Tasmania, South Australia, and the Northern Territory) create a positive duty on persons conducting a business or undertaking, such as employers and contractors, to ensure that all workers and others in the workplace are not exposed to health and safety risks, so far as is reasonably practicable. This includes psychological health, and therefore the risk of sexual harassment. Equivalent obligations to protect the psychological health of workers exist in Victoria and Western Australia, where the WHS model laws are not in place.
WorkSafe Victoria released draft regulations for comment in February 2022, with an intention for commencement on 1 July 2022. If implemented, the regulations will require employers to:
- identify psychosocial hazards – plus, prepare a prevention plan if certain psychosocial hazards are identified, such as aggression or violence, bullying, exposure to traumatic content or events, high job demands, or sexual harassment;
- control psychosocial hazards by eliminating them where possible or otherwise reducing them; and
- review and revise control measures.
In New South Wales, the WHS Act was amended on 16 September 2022 to specifically define “psychosocial hazards” (which includes workplace interaction or behaviours that may cause psychological harm, such as sexual harassment) and to impose a duty for employers to have regard to these hazards and risks and to effectively manage or eliminate them.
How organisations can comply with their obligations
To comply with health and safety obligations, employers ought to treat sexual harassment like any other work health and safety risk by identifying the risk, assessing the hazard, implementing control measures and reviewing those controls regularly.
In a work environment where there is a contractual chain present – meaning, a situation where there are multiple contractors and subcontractors in relation to the same project or work – an individual contractor will hold responsibility as an employer and as a worker. In this circumstance, the duty to provide a safe work environment is shared among contractors, and each person is responsible for discharging their WHS duty to the extent of their capacity to influence the matter. Regardless of your place in the contractual chain, you have a responsibility to consult, cooperate and coordinate activities to identify and manage WHS risks, so far as is reasonably practicable.
If you would like any further information about any of the requirements referred to in this article, please do not hesitate to get in touch with a member of our team.