There’s a lot of noise at the moment. Women are angry. They’ve had enough. They’re sick and tired of being sexually harassed or worse, assaulted at work and in all places they inhabit. They don’t want to put up with it anymore. They shouldn’t. They deserve [email protected]
The government is scrambling to respond. It’s simultaneously managing lockdowns, community angst and businesses on their knees. It’s at pains to avoid putting more pressure on employers but this is something it could do. It’s something it should do. Now more than ever.
Sometimes we try to find a way around things. We take the back streets only to find we spent a lot of time and energy on a work-around when we should have kept driving down the road ahead. This is where the government seems to have landed with the insistence that state work health and safety (WHS) laws can address sexual harassment in lieu of positive duties in the Federal Sex Discrimination Act.
How did we get here?
In April 2021 the government released its Roadmap for Respect in response to the 55 recommendations of the [email protected] Report, released in March 2020, which provided a comprehensive set of recommendations for addressing sexual harassment in the workplace.
Implementing some of the changes that were agreed (notably recommendations 16, 20, 21 22, 29 and 30) the Sex Discrimination and Fair Work ([email protected]) Amendment Bill 2021 was finally passed by both Houses of Parliament on September 2, 2021.
The [email protected] laws stop short of imposing six recommendations of the report, the most significant being the positive duty to “take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation, as far as possible” and the corresponding powers that would have been bestowed on the Australian Human Rights Commission (AHRC) to enforce it. These were merely noted.
The good news story the introduction of the [email protected] laws could have been was lost. This was not helped by Senator Pauline Hanson opining “we are raising a nation of sooks”. If only Senator Hanson understood the proposal. If she did, she would have realised this was the change we needed to protect people in workplaces rather than provide another jurisdiction for them to “sook” to.
The positive duty was in fact the navigation system at the heart of the roadmap to [email protected] What we have now is roadside assistance.
Roadside assistance: “Stop Sexual Harassment” Orders
The most significant change for employers made by the [email protected] laws is that the Fair Work Commission can now made orders to “Stop Sexual Harassment” by expanding the current jurisdiction designed to make orders to “Stop Bullying”.
The extension of the eight year old bullying jurisdiction to allow victims to apply for “stop sexual harassment” orders will provide a more protective mechanism for individuals to access, particularly where there is no impartial individual within the organisation to complain to, or where the organisation doesn’t have or hasn’t followed their internal policies or complaints resolution processes.
When ‘stop the bullying’ provisions were introduced into the Fair Work Act there were concerns from employers that floodgates would open and management discretion would forever be fettered by the FWC’s constant interference. This has not come to fruition. These are challenging applications for workers to make whilst they are still employed in an environment where bullying or harassment is occurring. This is especially so where trauma is involved.
These applications cannot be made when their employment ends. The aim of the application to the FWC is to stop bullying and now, by extension, sexual harassment of the worker. There is no compensation available and no ability for the worker to continue the application if they leave the workplace.
Victims of sexual harassment will have to wait a couple more months jurisdiction to be available. The FWC has asked for — and been granted — an extension of two months from when the laws are passed to enable it to provide adequate time to consult with experts and advisory groups on appropriate processes for case managing applications for orders to stop sexual harassment; to establish appropriate support services for applicants (which could include triage and referral to external services such as sexual harassment support, counselling and mental health services); and to provide training and resources to Commission Members, conciliators and case management staff who will deal with sexual harassment cases on the nature, drivers and impacts of sexual harassment and on trauma informed practice.
Managing infringements: sexual harassment grounds for dismissal
The [email protected] laws have amended the Fair Work Act to provide a valid reason for dismissal if a person sexually harasses another in connection with their employment. Frankly, this is not new. When we investigate and substantiate cases of sexual harassment with employers, termination of employment is often the outcome. When perpetrators have challenged their dismissals on the basis they are unfair, the FWC is increasingly finding dismissal were not harsh, unjust or unreasonable in all the circumstances.
Sexual harassment happens on a scale and with varying degrees of seriousness. There are other factors the FWC must consider in determining whether there is a valid reason for termination and procedurally fairness must be afforded employees. Employers are still required to undertake an investigation into the conduct, determine whether it is substantiated, consider the conduct in the context of the employee’s employment and follow appropriate disciplinary procedures.
However, confirming sexual harassment is valid reason for termination is a helpful clarification point and may embolden employers to move to dismissal and help defend such dismissals if challenged.
The navigation system: no positive duty paving the road to [email protected]
The report recommended including in the Sex Discrimination Act a positive duty on all employers to ‘take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation, as far as possible’.
To enforce this duty, it was recommended the Australian Human Rights Act be amended to provide the AHRC with an enhanced inquiry function to enable it to inquire into systemic unlawful discrimination, including systemic sexual harassment. More specifically, it was proposed the AHRC would:
- Undertake assessment of the extent to which an organisation has complied with the duty;
- Issue compliance notices if it consider an organisation has failed to comply;
- Enter into agreements and enforceable undertakings with organisations; and
- Apply to court for an order requiring compliance with the duty.
This is similar to the power the Fair Work Ombudsman currently has to enforce underpayment of wages under the Fair Work Act. This is a power the Fair Work Ombudsman is exercising with great rigor and success in getting the attention of company boards and achieving general deterrence.
The report noted the current legislative framework under the Sex Discrimination Act is largely remedial in nature and places significant responsibility on individual complainants. This usually means employer practices are usually scrutinised after an allegation of sexual harassment has been made and most often, after an employee has made a decision to leave. This is particularly so where the allegations involve managers who are perceived as protected by the organisation.
Whether an employer has taken ‘all reasonable steps’ to prevent sexual harassment in the workplace, is currently only a defence to vicarious liability to claims for sexual harassment by employees and agents under the Sex Discrimination Act. An example of all reasonable steps would include implementing and promulgating policies and procedures prohibiting sexual harassment in the workplace and appropriately managing complaints, training employers and managers regarding those policies and consistently enforcing them when breached. A positive duty would require similar actions but to be proactively taken rather than invoked as evidence of a defence if and when a claim is made.
Redirected to the winding road of WHS laws
In the roadmap, the government responded that:
under the model WHS laws, persons conducting a business or undertaking, such as employers, already have a duty to ensure that all persons in the workplace, including workers, are not exposed to health and safety risks, so far as is reasonably practicable. This includes the risk of being sexually harassed.
Recommendation 35 of the report provides that “the WHS ministers agree to amend the model WHS Regulation to deal with psychological health and develop guidelines on sexual harassment with a view to informing the development of a Code of Practice on sexual harassment. Sexual harassment should be defined in accordance with the Sex Discrimination Act”.
A code of practice is a practical guide on how to comply with the legal duties under the WHS Act and Regulations. An approved code is automatically admissible as evidence in court proceedings under the WHS Act and Regulations. Courts may have regard to a code as evidence of what is known about a hazard, risk or control and may rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.
To develop and implement a WHS Code of Practice regarding the Prevention of Workplace Sexual Harassment, there will be significant work involved with the nine regulators across Australia. Each state and territory ministers will need to introduce a Code of Practice under their respective state or territory WHS laws. Each of them would need to be appropriately resourced with qualified inspectors to consistently enforce breaches of WHS duties arising from sexual harassment, applying principles of trauma informed practice.
In January 2021, Safe Work Australia published the “Preventing Workplace Sexual Harassment Guide”. While the guide is comprehensive, instructive and informative, it does not have the weight of the law behind it. SafeWork NSW has now implemented a Code of Practice for Managing Psychological Hazards at Work. In the code, which briefly defines harassment as a “single or repeated incidents of forms of harassment by co-workers, clients, patients, visitors or others around a person’s race, religion, gender, age, disability etc” and refers to the guide for more information.
This is a far cry from the positive duty that was proposed.
We need to understand more on what the “agreed” training “on the nature, drivers and impacts of sexual harassment” that will be offered to WHS regulators by the [email protected] Council will look like (Recommendation 36 of the Report). Who this will be offered to? Will special units be created or will this be a one off course offered across the board to all inspectors. Will the same inspectors investigating construction site accidents be investigating incidents of sexual harassment and assault in the workplace? Will they be trained in trauma informed practice?
We seem to have more questions than answers on the road down which we have been redirected. We are certainly a long way off a positive duty that was recommended in the report and the enforcement powers that would have been bestowed on AHRC as a regulator.
To accept the WHS regulators will fill the shoes proposed for the AHRC in enforcing the positive duty, we need to know more. From where I’m sitting at the moment, our roadmap to [email protected] seems to be lacking a navigation system.
This article was first published on LinkedIn.