Fay Calderone, Hall & Wilcox
Fay Calderone, Hall & Wilcox

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The national inquiry into workplace sexual harassment has recommended numerous law changes that should "embolden" employers to take stronger action when harassment occurs in their workplaces, a legal expert says.

Sex Discrimination Commissioner Kate Jenkins released her 932-page report late yesterday, making 51 recommendations for reform.

She describes the current system for addressing workplace sexual harassment in Australia as "complex and confusing for victims and employers to understand and navigate. It also places a heavy burden on individuals to make a complaint".

Hall & Wilcox partner Fay Calderone says the recommendations overall are positive, in that they "put a fence at the top of the hill rather than an ambulance at the bottom".

"Rather than expanding the number of claims and remedies available for claims, they very clearly try and look at the preventative measures, and early intervention, which is really important in order to address these issues contemporaneously and to keep people in the workforce."

Proposed primary prevention initiatives include but are not limited to social change strategies to increase knowledge of and change behaviours that drive sexual harassment, educational resources for young people of working age on workplace rights and school-based respectful relationships education.

Positive duty to prevent harassment

Jenkins proposes amending the Sex Discrimination Act to include a positive duty on employers to take "reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible".

"The current legislative framework remains largely remedial in nature because the unlawful discrimination provisions only arise once a complaint has been made," she says in the report. "This places significant responsibility on individual complainants and means that employer practices are often only externally scrutinised after an allegation of sexual harassment has been made."

The positive duty would be similar to that under WHS laws to protect employees' health and safety and is necessary to drive prevention and cultural change, Calderone says.

"Although we've always said sexual harassment causes issues relating to mental health... this quite squarely makes it a positive duty in relation to sexual harassment without the need to establish that causal connection."

The Commission notes there has been increasing rates of sexual harassment coupled with reduced reporting under the existing framework, and that the positive duty requirement would not create a new or increased burden for employers. The AHRC would also have enforcement powers, and be able to undertake assessments of the extent to which employers have complied with their duty.

"There will be some real concerns from employers, especially around the regulatory powers, but what is being proposed from a regulatory point of view – in terms of powers to come in and inspect, request documents, compliance undertakings – are things we are familiar with, both from a safety point of view and a Fair Work Act point of view (in terms of underpayments)," says Calderone.

"It makes sense that if we are going to have early intervention and general deterrence and preventative measures put in place, that those similar mechanisms are put in place to intervene early and address sexual harassment."

Sexual harassment is serious misconduct

The "crux" of the report and the recommendations that will have the biggest impact on employers is if the Fair Work system is reviewed to clarify that sexual harassment, using the definition in the Sex Discrimination Act, is expressly prohibited, Calderone says.

The report proposes that sexual harassment in the workplace will be specifically described as adverse action for the purposes of section 351 of the Fair Work Act.

Section 387 of the FW Act will also be amended to clarify that sexual harassment can constitute a valid reason for dismissal, and the definition of 'serious misconduct' in the Fair Work Regulations will be amended to include sexual harassment.

"[This] empowers employers and emboldens them to deal with that conduct by being able to specifically point to Fair Work regulation and say sexual harassment is specifically expressed as a ground for misconduct," Calderone says.

"Where there is a clear substantiated finding of sexual harassment, that is serious misconduct. Then you've got to look at the circumstances more broadly to determine nevertheless whether a termination would be harsh in all the circumstances.

"It really is just to give clarity around these issues and embolden employers to deal with them in circumstances where in the Fair Work jurisdiction, formal laws of evidence don't always apply and Commissioners have discretion."

Orders to stop sexual harassment

In an attempt to provide employees who are experiencing workplace sexual harassment with an external avenue to take action, the Commission recommends introducing a 'stop sexual harassment order' into the Fair Work Act, similar to the existing avenue to apply for stop-bullying orders.

Calderone notes that when stop-bullying orders were originally proposed, many employers were concerned by the extent to which they could potentially encroach on employer discretion and into the workplace.

"There was a real fear that we would open up the floodgates and the Fair Work Commission would be dealing on a day-to-day basis with claims in relation to what should ordinarily be addressed at work."

But this hasn't played out, she says, and stop-sexual-harassment orders could be beneficial in achieving further general deterrence.

"In the same way that employers don't want to be in the media in relation to sexual harassment, they also don't want to be before the FWC explaining themselves about what has happened in their workplace and what they did or didn't do to control it.

"At the same time, I think it takes a fairly bold individual to approach the Commission for orders that someone in their workplace, particularly a superior in their workplace, stop bullying, much less sexually harassing them."

Aiding and abetting sexual harassment

A proposal to amend section 105 of the SDA would clarify that aiding or permitting an unlawful act includes acts of sexual harassment.

Calderone says this aligns with many other legislative developments to drive accountability by making individuals responsible – including accessorial liability under the Fair Work Act, whistleblower protections, and guidelines coming out of the banking and finance royal commission.

"Unlike vicarious liability, an organisation can be an accessory to sexual harassment even if there is no legal relationship between the organisation and the harasser such as that of employer/employee. In these cases the organisation must have contributed to the sexual harassment in order to be liable as an accessory, either knowingly, recklessly or through wilful blindness," she says.

"A person can 'permit' another person to do an act which is unlawful, such as discriminate against a woman on the grounds of her sex, if, before the unlawful act occurs, the permitter knowingly places the victim of the unlawful conduct in a situation where there is a real, and something more than a remote, possibility that the unlawful conduct will occur. In effect, a person will be an accessory to harassment if they were aware or should have been aware that sexual harassment was occurring, or that there was a real possibility of it occurring, did nothing to address it and thereby allowed the harassment to take place.

"An example is where HR has had a complaint in relation to a particular individual – a manager or someone that has control over another individual in terms of responsibility – and knows they have 'form', and perhaps permits that person to go on an interstate trip with that same employee without putting any precautions in place to prevent a recurrence of what has already happened."

This doesn't require HR to have "actual knowledge" of unlawful acts, the report notes, but it "does require some actual or constructive knowledge of the surrounding circumstances of the respondent".

Further recommendations

Jenkins also recommends:

  • a new framework for workplaces to better prevent and respond to sexual harassment, structured around seven domains (HR Daily will report on this in more detail in an upcoming article);
  • making sexual harassment claims a no-costs jurisdiction similar to the Fair Work Act;
  • extending (from six to 24 months) the AHRC's discretion to terminate a complaint, from six to 24 months after the alleged unlawful conduct took place;
  • establishing a workplace sexual harassment council, with members from the Fair Work Commission, Safe Work Australia, workers' compensation authorities and the Australian Council of Human Rights Authorities;
  • amending state and territory laws to be more consistent;
  • requiring FWO and FWC staff to undertake training and education on sexual harassment; and
  • amending defamation laws to better protect victims from defamation.

Respect@Work: Sexual harassment national inquiry report (2020)