Sexual harassment in the workplace is not a gender issue, it’s everyone’s business – What employers need to know
The Commonwealth Government recently accepted or took note of the 55 recommendations made in the Australian Human Rights Commission (AHRC) [emailÂ protected]: National survey on sexual harassment in Australian workplaces report ([emailÂ protected] Report). Each of the recommendations is to be adopted “in whole, in part or in principle”, with the first set of recommendations to be considered by the federal Parliament in June 2021.
In addition to upcoming amendments to Commonwealth law, Queensland Premier Annastacia Palaszczuk recently announced a review of Queensland labor relations laws to consider tougher protections for Queensland workers. Examination of the Industrial Relations Act Qld 2016 (Qld) is set to investigate industrial protections for workers in the state’s public service, including the Queensland Industrial Relations Commission which has the power to make orders against sexual harassment. Following reports on the prevalence of sexual harassment in the Queensland civil service, Prime Minister Palaszczuk also announced that the Queensland government will appoint a fairness officer to handle complaints of bullying, harassment and sexual misconduct .
In this article, Special Counsel, Fran keyes, Lawyer, John hickey and forensic scientist, Annabel phelan Explain why employers, regardless of whether or not their obligations to staff are regulated by the state and the federal system, need to know and meet their obligations.
Key takeaways for business owners
Employers should carefully consider upcoming Commonwealth legislative changes in order to prevent and respond effectively to cases of sexual harassment in the workplace.
Employers can take immediate action to prepare for the implementation of these changes from June 2021.
- Review existing workplace policies and procedures to ensure employees understand that sexual harassment is prohibited and will not be tolerated in the workplace.
- Implement training programs for all workers in identifying, responding to and reporting cases of gender discrimination or sexual harassment in the workplace.
- Build a culture of trust by creating opportunities for employees to voice concerns about sexual harassment without fear of adverse actions or victimization. This may include the appointing authority of an equal employment opportunity officer at the workplace.
- Develop processes and procedures to deal with reports of sexual harassment in the workplace and put in place appropriate support systems for survivors before, during and after writing a sexual harassment report. This may include providing former and current employees with unlimited access to employee assistance programs or covering the cost of private counseling for employees.
The responsibility to combat sexual harassment in the workplace is everyone’s business and for the benefit of everyone, regardless of gender or sexual orientation. Companies that accept and prepare for these legislative changes will be in the best position to lead changes towards more positive working behaviors.
[emailÂ protected] REPORT
Sexual harassment refers to unwanted sexual advancement, unwanted request for sexual favors, or other unwanted conduct of a sexual nature in circumstances where a reasonable person would consider the harassed person to be offended, humiliated or intimidated. It is illegal for any workplace participant (i.e., an employer, employee, contractor or partner in a partnership) to engage in sexual harassment with another workplace participant in the workplace. workplace. Sexual conduct includes physical touching, making sexually suggestive comments or jokes, and sending sexually explicit images through electronic media. In determining whether there has been sexual harassment, the personal history and relationships between the parties as well as any other relevant circumstances are taken into account.
AHRC NATIONAL SURVEY
The most recent national survey conducted by the AHRC between April and June 2018 confirmed that sexual harassment in Australian workplaces is widespread and pervasive, with around one in three people experiencing sexual harassment at work in the past five last years. The investigation also revealed:
- two in five women (39%) and one in four men (26%) have experienced sexual harassment at work in the past five years;
- four in five people (79%) have been sexually harassed by a male harasser;
- 52% of workers who identify as LGBTI, 53% of Indigenous or Torres Strait Islander workers, and 44% of workers with disabilities have experienced sexual harassment on the job in the past five years;
- youth aged 18 to 29 were more likely than those in other age groups to have experienced sexual harassment on the job in the past five years;
- less than one in five (17%) has made an official report or complaint about sexual harassment in the workplace;
- almost one in five people who made a formal report or complaint have been labeled a troublemaker, have been ostracized, victimized, ignored by their colleagues or have resigned;
- in one in five cases the official report or complaint had no consequences for the perpetrator and, if there was some consequence, it was most often a verbal warning; and
- While more than one in three people have witnessed or heard about sexual harassment from another person in their workplace in the past five years, only one in three has taken steps to prevent or reduce the harassment. prejudices of this harassment.
NATIONAL SURVEY ON SEXUAL HARASSMENT IN AUSTRALIAN WORKPLACES
As a result of this inquiry, the National Inquiry into Sexual Harassment in Australian Workplaces (Inquiry) was announced by Australian Gender Discrimination Commissioner Kate Jenkins and then Minister for Women Kelly O ‘ Dwyer.
The aim of the survey was to address sexual harassment in Australian workplaces, focusing on the nature and pervasiveness of sexual harassment, the factors behind the harassment and the measures needed to address sexual harassment. The investigation was opened against the backdrop of the #MeToo and #LetHerSpeak movements and the recognition of the prevalence and immense damage caused by sexual harassment in Australian workplaces.
By delivering the [emailÂ protected] In his report of 5 March 2020, Commissioner Jenkins indicated that the current legal and regulatory system was no longer suited to his objectives and that the new regulatory model was evidence-based, victim-centered and framed from a gender and intersectional.
Commissioner Jenkins further said that “sexual harassment is not a women’s problem: it is a social problem, which every Australian, and every Australian workplace, can help solve.”
Commonwealth Legislative Amendments on Sexual Harassment Laws
the [emailÂ protected] The report offered a series of recommendations to improve the legal and regulatory framework relating to sexual harassment in Australia.
Relevantly, the [emailÂ protected] The report provides for specific changes to the Fair Labor Act 2009 (Cth) (FW law), the Gender Discrimination Act 1984 (Cth) (SD Act) and the Occupational Health and Safety Act, 2011 (Cth) (WHS Law).
The main legislative changes to the FW Act and its related regulations adopted by the Commonwealth Government, in whole or in principle, include:
- the definition of serious misconduct in the Fair Work Regulations 2009 (Cth) should be amended to include an express reference to sexual harassment;
- sexual harassment must be expressly mentioned as a valid reason for dismissal for the purposes of a request for unfair dismissal; and
- the fair work information statement must include additional guidelines on sexual harassment (subject to the agreement of the fair work ombudsman).
The Commonwealth Government has also accepted in whole or in principle the following recommendations regarding the Sustainable Development Act and related legislation:
- sexual harassment in the workplace and the creation or facilitation of an intimidating, hostile, humiliating or offensive environment on the basis of sex should be expressly prohibited;
- any behavior which amounts to victimization may form the basis of civil action for unlawful discrimination;
- current exemptions for civil servants should be removed (coverage should be extended to include judges and parliamentarians); and
- the deadline for filing a complaint for alleged unlawful discrimination is extended to 24 months after the alleged incident.
The following recommendations to the WHS Act and its associated instruments were also approved in full or in principle:
- to modify Safe Work Australia Model Regulations on Occupational Health and Safety deal specifically with psychological health; and
- introduce a code of good practice on psychological risk management which covers sexual harassment in the workplace.
Advice on sexual harassment in the workplace
Following these changes, the Commonwealth Government created the Workplace Sexual Harassment Council ([emailÂ protected] advice) chaired by the Gender Discrimination Commissioner and includes representatives from the Fair Labor Commission, the Fair Work Ombudsman, Safe Work Australia, officials from the Workplace Safety and Compensation Authorities and Australian Human Rights Council authorities. The purpose of the [emailÂ protected] The Board needs to improve coordination, consistency and clarity in key legal and regulatory frameworks in response to sexual harassment. The first Board meeting was held on March 19, 2021.
The Commonwealth government, however, stopped short of accepting in whole or in principle many of the recommendations of the [emailÂ protected] Report. More importantly, the introduction of a positive obligation in the Sustainable Development Act for all employers to take reasonable and proportionate measures to eliminate as far as possible gender discrimination, sexual harassment and victimization has only been noted.
In response to the recommendation, the Commonwealth Government observed that the WHS Act imposes a positive obligation on employers to eliminate or manage hazards and risks to the health of workers. This includes physical health and, therefore, encompasses potential injuries associated with harassment or sexual assault in the workplace. While no positive obligations regarding sexual harassment are placed on employers, it is important that employers be proactive in ensuring that the responsibility for dealing with sexual harassment in the workplace does not fall solely on the shoulders. of the victim.