Australia: Positive Duty to Prevent Sexual Harassment in the Workplace yet to be Legislated, but some Employers are already Ahead of the Game

Authors: Emma Pritchard and Maria Markoulli

In March 2020, the Australian Human Rights Commission (Australia’s national human rights institution) published its Respect@Work Report, making 55 recommendations to the Commonwealth Government (as well as states and territories, employers and industry groups) to prevent and address sexual harassment in the workplace. The focus of many of the recommendations were on workplace prevention and response. However, so far this has not been the focus of legislative enactment of recommendations, with the effect that there is still a long way to go before the true spirit of the Respect@Work Report is fully embedded into the culture of all Australian workplaces and institutions.  In saying this, there are some employers that understand that they already have a positive duty under the Work, Health and Safety legislation, as well as recognising the importance of leading the way, by taking proactive steps to prevent sexual harassment in their workplace.

The Impact of Recent Legislative Changes

In September 2021, the Commonwealth Government responded to the Respect@Work Report through the introduction of the Sex Discrimination and Fair Work (Respect At Work) Amendment Act 2021 (Cth). This amending legislation only enacted 6 of the 55 recommendations. Whilst 1 of the 6 recommendations reflected in the amending legislation importantly extended the timeframe for bringing a complaint from 6 months to 24 months, they were not focused on promoting a culture of prevention. Rather, they have brought about an expansion of reactive protections, which have clarified and extended the definition and scope of sexual harassment.

The Need for a Positive Duty

In February 2022, the Attorney-General’s Department published a consultation paper on options regarding progressing further recommendations from the Respect@Work Report into legislation. One of the most important recommendations put forward for consideration is amending the national sex discrimination legislation, the Sex Discrimination Act 1984 (Cth) (“SDA”), to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible (Recommendation 17 from the Respect@Work Report).

Despite the adverse publicity the Federal Government received at the time from their handling of the Brittany Higgins sexual harassment allegations, and the overwhelming public support of activists such as Grace Tame and Chanel Contos, legislating a positive duty to prevent sexual harassment has not been front and centre of policies put forward by any of the parties in the recent federal election (election day was 21 May 2022). Introducing a positive duty would give legislative effect to the prevention-focused culture the Respect@Work Report has been seeking to enliven. Furthermore, it would create consistency between the SDA and the positive duty that already exists under Work Health & Safety laws to eliminate or minimise risks to health and safety in the workplace. It is imperative that a positive duty to promote a prevention-focused approach in Australian workplaces and institutions is introduced into the SDA, for the reason that it is only with this positive duty being imposed on workplaces that consistent and systemic change in corporate culture will be affected.

Best Practice in the Workplace

Having said that, many corporate employers have already made the shift in focus from a complaints-based, reactive approach, to a preventative approach to sexual harassment. These corporate employers correctly recognise that it is simply not enough to discharge their obligations by having a comprehensive policy that states that sex discrimination, sexual harassment and victimisation are unacceptable in the workplace. These employers recognise that whether or not a positive duty is legislated into the SDA, they already have an active duty of care to eliminate or minimise risks to health and safety under Work, Health and Safety legislation, and, in any event, understand the importance of leading the way in this space.

Key Action Points for Human Resources and In-house Counsel

Accordingly, for those employers yet to take active steps to prevent sexual harassment from occurring in the workplace, and consistent with the recommendations of the Respect@Work Report, as a minimum, we recommend that all employers:

• Develop ethical leadership practices at all levels (including those in the most senior areas of management) in an organisation to ensure that steps are taken to prioritise the prevention of all forms of unacceptable behaviour.
• Create clear lines of accountability for all leaders, managers and board members.
• Provide face-to-face induction and refresher training in relation to sex discrimination, sexual harassment, victimisation and bystander intervention to all staff and management of all levels in the organisation.
• Conduct an annual, anonymised workplace culture survey that incorporates questions and measures that allow for identification of any deficiencies.
• Utilise performance review and incentive systems that assess all employees (including management) against key organisational values, including professionalism and respect for others.
• Develop strong recruitment procedures that enable for screening candidates against criteria related to sexual harassment prevention.