A roadmap for respect: proposals for reforming laws on sexual harassment at work
With the Australian Human Rights Commission [emailÂ protected] Report noting that nearly two in five women (39%) and just over one in four men (26%) had been victims of sexual harassment in the workplace in the five years leading up to 2018, sexual harassment on the Workplace has been described as widespread and ubiquitous, occurring in “every industry, in every place and at every level, in Australian workplaces”.
Following the national inquiry, which examined the current state of sexual harassment laws in Australia, the Commission made 55 recommendations to address the current prevalence of sexual harassment in the workplace. This included making recommendations for large-scale legislative reform.
On April 8, 2021, the Australian government released its Roadmap for respect, responding to the 55 recommendations of the Australian Human Rights Commission and providing what it called “a clear and comprehensive path for Australia to prevent and tackle sexual harassment” in the workplace.
Although no bills have yet been introduced in parliament, employers should prepare for legislative changes in the following key areas.
What changes are proposed?
Unfair dismissal – clarification that sexual harassment can be a valid reason for dismissal and serious misconduct
Currently the Fair labor law requires the Fair Work Commission to consider a number of criteria in determining whether a termination is “harsh, unfair or unreasonable”, including whether there was a valid reason for the termination related to ability or conduct of the person.
While the report acknowledges that Australian courts and commissions have recognized that sexual harassment can be a valid reason for termination, it identified that:
- there is a misconception in Australian workplaces that unfair dismissal provisions prevent employers from firing employees who have engaged in sexual harassment
- the Fair Work Commission has on several occasions awarded sums to employees because of the employer’s failure to comply with procedural requirements, although it has found that there is a valid reason for dismissal for sexual harassment.
In response, the Roadmap proposes to modify:
- the Fair labor law, clarifying that sexual harassment may be conduct amounting to just cause for termination, with the intention that it also be weighted appropriately against procedural and other factors
- the definition of “serious misconduct” in the Fair labor regulations to include sexual harassment, to clarify that this type of behavior in the workplace can justify dismissal without notice.
Ancillary liability for sexual harassment
Under the federal Gender Discrimination Act 1984 (Cth), those who cause, instruct, induce, aid or allow another person to do an act are also deemed to have done that act. At present, these provisions do not apply to sexual harassment, unless the conduct also constitutes discrimination.
The Roadmap proposes to modify this article to ensure that it applies to sexual harassment, creating an ancillary liability for those who are deemed to have caused, instructed, incited, aided or permitted another person to commit an act of sexual harassment.
Civil action for victimization
The Sex Discrimination Act currently contains victimization provisions that prohibit a person from retaliating, or threatening retaliation, against a person because they have made a complaint of sexual harassment or because they took action in support of a complaint.
The roadmap proposes to modify the Australian Human Rights Commission Act 1986 (Cth) to clarify that victimization can be the basis of a civil action for unlawful discrimination and to clarify that those whose victimization claims are closed by the Australian Human Rights Commission can apply to the Federal Court or the Federal Circuit Court.
Extended claim period
Although there is no time limit for filing a complaint of sexual harassment with the Australian Human Rights Commission, the Chairman of the Commission has the discretion to terminate a complaint lodged more than six months. after the alleged sexual harassment has taken place.
The roadmap recognizes that the six-month deadline does not take into account the complexity of why a victim may delay filing a sexual harassment complaint, and proposes to extend the timeframe for exercising the discretion to file end at 24 months.
Stop Bullying Order Includes Sexual Harassment
the Fair labor law allows a worker to apply for a âstop bullyingâ order if:
- a person or group of people repeatedly behaves unreasonably towards the worker (or a group of workers of which the worker is a member)
- the behavior creates a risk to health and safety.
Although the report recommends the introduction of an equivalent âanti-sexual harassment ordinanceâ, the roadmap indicates that the government believes that the goal will be achieved with greater simplicity by clarifying that a âAnti-Bullying Orderâ is available in the context of sexual violence harassment.
With the Roadmap indicating that legislative reform is on the horizon, the way sexual harassment is perceived in the workplace is set to change. With broader avenues for victims and increased remedies for employers, it is important that all parties are aware of their obligations under the Occupational Health and Safety Act. For employers, this means taking action to eliminate or minimize the risk of sexual harassment in the workplace, which may change as a result of the reforms described above.