Workplace Sexual Harassment: Reform on the Way

Jessica Hill and Katherine Stewart, Velocity Legal

On 5 March 2020, the Sex Discrimination Commissioner, Kate Jenkins, released the report titled ‘[email protected]: National Inquiry into Sexual Harassment in Australian Workplaces’ ([email protected] Report). The [email protected] Report provides a list of recommendations for preventing and addressing workplace sexual harassment in Australia.

Soon after the release of the report, the COVID-19 pandemic gripped Australia. Discussions around the [email protected] Report appeared to subside.

However, following a surge of publicity around workplace sexual harassment, the Morrison government has announced its response to the [email protected] Report. The government has now agreed to, agreed in principle to, or noted all 55 recommendations.

For businesses, this means that reform will soon be on the way.

Proposed reforms

[email protected] Report found that workplace sexual harassment is a pervasive and widespread issue. The 55 recommendations span topics such as education to establishing a Workplace Sexual Harassment Council.

Of particular interest for employers are the recommendations that address the current legal and regulatory framework.

The government has committed to developing and implementing various reforms to reduce existing complexity and strengthen national legal frameworks. It has also agreed to review or amend aspects of the Fair Work system.

Specific changes

Changes that have been committed to by the government include:

1. amending section 387 of the Fair Work Act 2009 (Cth) to clarify that sexual harassment can amount to a valid reason for dismissal;

2. amending the definition of ‘serious misconduct’ in the Fair Work Regulations 2009 (Cth) to include sexual harassment and clarifying that such behaviour can justify summary dismissal;

3. clarifying that a ‘stop bullying order’ is available to employees in the context of sexual harassment;

4. amending the Sex Discrimination Act 1984 (Cth) to ensure sex-based harassment is expressly prohibited; and

5. amending the Sex Discrimination Act 1984 (Cth) to ensure greater alignment with work health and safety laws and to make the system for addressing sexual harassment easier for employers and employees to navigate.

A bill setting out these and other changes may be drafted by the end of June.

Any legislation is likely to be the subject of strong debate and lobbying. The union movement has already expressed concerns about the adequacy of the government’s roadmap and failure to commit to all recommendations in the [email protected] Report.

Businesses should carefully watch this space for upcoming changes.

Practical guidance

With attention on the important issue of workplace sexual harassment increasing, businesses must ensure they are meeting their obligations. This includes ensuring that a safe working environment is provided and maintained for workers, as far as reasonably practical.

Businesses should take appropriate steps to prevent workplace sexual harassment. Under federal and Victorian law, employers can be liable for sexual harassment perpetrated by their employees in connection with their employment unless the employer took sufficient steps to prevent the harassment.

In most cases, a robust sexual harassment policy is the bare minimum for an employer to not be held vicariously liable for its employees’ harassment. However, a policy alone is unlikely to be sufficient.

In this regard, employers should:

1. communicate their expectations regarding workplace sexual harassment to employees;

2. enforce their workplace sexual harassment policy;

3. establish a complaints-handling system;

4. carry out training; and

5. implement strategies to build a culture of respectful relationships in the workplace.

If you have any questions about workplace sexual harassment, or require assistance preparing a sexual harassment policy, please contact us. Our employment team is here to help you.

This article is general information only and in no way constitutes legal advice.

Insight Authors…

JESSICA HILL

Special Counsel

Jess is not your average lawyer. She works tirelessly to help her clients to achieve their objectives, and she is genuinely passionate about her work. Jess also has a green thumb. Whether it is in the garden or at work, Jess is always prepared to methodically solve any challenges that arise.

0418 338 292 •  VIEW DETAILED PROFILE   •  READ ALL OF JESSICA'S ARTICLES

KATHERINE STEWART

Senior Associate

Katherine knows employment law. She loves tackling complex workplace problems and guiding clients through the ever-changing employment law landscape. You might find Katherine cooking up a storm in her spare time (the more chilli the better). If your workplace is feeling the heat, Katherine will help calm things down.

0476 008 594 •  VIEW DETAILED PROFILE   •  READ ALL OF KATHERINE'S ARTICLES

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