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Precedent (Australian Lawyers Alliance) |
THE CHANGING LANDSCAPE OF LEGAL PROTECTIONS AGAINST SEXUAL HARASSMENT
By Melanie Schleiger, Sally Latter, Jen Lynch and Rachel Athaide
In 2021 Australia’s law-makers finally felt the aftershocks of the #MeToo movement and were jolted into action to better protect Australian workers against sexual harassment. Since then, there have been multiple law reform inquiries, partial implementation of the Australian Human Rights Commission’s (AHRC) 55 recommendations in its 2020 Respect@Work: Sexual Harassment National Inquiry Report (Respect@Work Report), and a seismic shift in the way that work health and safety regulators deal with sexual harassment.
This article examines the recent changes that have been made federally and within Victoria under the Fair Work Act 2009 (Cth) (Fair Work Act), the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) and work health and safety laws, and discusses some remaining challenges and future options for reform to address sexual harassment.
LEGISLATIVE REFORMS
The Respect@Work Report found that sexual harassment is a pervasive and prevalent issue in Australian workplaces, with almost two in five women (39 per cent) and one in four men (26 per cent) reporting they had experienced workplace sexual harassment in the last five years.[1]
The report set out 55 recommendations to prevent and address sexual harassment at work, including 13 recommendations to amend Commonwealth legislation. In response, the former government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect at Work Act 2021), which passed on 11 September 2021, and implemented several of the recommended legislative reforms. These changes included:
• Empowering the Fair Work Commission (FWC) to make ‘stop sexual harassment orders’ (discussed in more detail below).
• Clarifying that sexual harassment can be a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable under the Fair Work Act.[2]
• Including sexual harassment in the definition of ‘serious misconduct’ under the Fair Work Regulations 2009 (Cth).[3]
• Increasing the time limit for making a complaint of sexual harassment to the AHRC from six to 24 months.[4]
• Amending the Sex Discrimination Act to:
o prohibit ‘sex-based harassment’ in all areas of public life covered under the Sex Discrimination Act;[5]
o clarify that it is unlawful to aid or permit sexual harassment;[6] and
o clarify that victimisation can form the basis of a civil action for unlawful discrimination.[7]
Stop sexual harassment orders
The new regime that allows the FWC to make stop sexual harassment orders is very similar to the existing ‘stop bullying order’ regime and is set out in the FWC’s Orders to Stop Sexual Harassment Benchbook.[8]
There are challenges with the regime that make it a flawed tool for preventing sexual harassment:
• A worker can only make an application if they experienced sexual harassment ‘at work’, which limits coverage. While the worker does not have to be physically at work, the phrase appears to require that the worker was engaged in an authorised work-related activity at the time.[9]
• An order may only be made if ‘there is a risk that the worker will continue to be sexually harassed at work’ by the relevant individual/s.[10]
• There is also a risk that provisions in the Fair Work Act and anti-discrimination legislation that are intended to prevent ‘double-dipping’ may operate to bar a person from pursuing a future general protections or discrimination claim in circumstances where they have previously sought a stop sexual harassment order.[11]
• No order for compensation can be made in response to a stop sexual harassment application.[12]
These limitations fail to recognise the complex nature of work arrangements and interactions, which can include contact between workers outside of work including online, and at conferences and events. It also ignores the complex nature of sexual harassment; without broadening the application of stop sexual harassment orders, the regime may fail to address conduct in contexts where sexual harassment is rife or there is a risk to others in the workplace, or restore an employee’s sense of safety following a serious incident of sexual harassment. The regime treats sexual harassment as being solely a personal problem between two people, when research shows that a permissive organisational culture – evidenced, for example, by a dismissive response to complaints and managers who ignore harassment – plays a significant role in increasing incidents of sexual harassment[13] and should therefore be considered when determining the ongoing risk of sexual harassment occurring.
LOOKING AHEAD
In May 2022, the current federal Government committed to implementing all 55 Respect@Work Report recommendations, and in September the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect at Work Bill 2022) was introduced to this effect. As drafted at the time of writing, the Respect at Work Bill 2022 would introduce the following changes recommended in the Respect@Work Report:
• A positive duty on employers to take reasonable and proportionate measures to eliminate unlawful sex discrimination, including sexual harassment, as far as possible (discussed further below).
• Additional powers and functions for the AHRC to:
o issue guidelines about complying with the positive duty and promote public understanding of the positive duty; and
o monitor and enforce compliance with the positive duty, including by conducting inquiries, issuing compliance notices, entering into enforceable undertakings and applying to the federal courts for orders to direct compliance.
• An inquiry power that enables the AHRC to investigate systemic discrimination that is unlawful under federal discrimination laws, such as sexual harassment.
• A prohibition on subjecting another person to a workplace environment that is hostile on the ground of sex, which is intended to address generalised sexist conduct that is not necessarily directed at an individual, such as the display of posters that objectify women.
• A more consistent representative actions process that allows unions and other bodies to progress representative actions on behalf of people who have been sexually harassed, from conciliation at the AHRC to an application to court.
• A costs protection provision that generally presumes that parties to legal proceedings under the Sex Discrimination Act will bear their own costs.
• Amendment of the objectives of the Sex Discrimination Act to include the objective of achieving substantive equality between men and women, not just equality of men and women.[14]
• Amendment of the definition of harassment on the ground of sex in the Sex Discrimination Act – which currently defines ‘sex-based harassment’ as ‘unwelcome conduct of a seriously demeaning nature’ – to remove ‘seriously’.[15]
• A requirement in the Workplace Gender Equality Act 2012 (Cth) for Commonwealth public sector organisations to report to the Workplace Gender Equality Agency on gender equality indicators.
• Clarification that under the various federal anti-discrimination laws, victimising conduct can form the basis of a civil action for unlawful discrimination in addition to a criminal complaint.
• An extension of the timeframe for making a discrimination complaint under any of the federal anti-discrimination laws to the AHRC from six to 24 months.
The current federal Government has also committed to separately introducing an accessible new complaints process and an express prohibition on sexual harassment and sex-based harassment under the Fair Work Act.[16]
Positive duty
The Respect at Work Bill 2022 implements the Respect@Work Report recommendation that the Sex Discrimination Act be amended to include a positive duty on employers to take reasonable and proportionate steps to eliminate sexual harassment, sex discrimination and victimisation, that is supported by a compliance mechanism such as the ability to issue compliance notices and enter enforceable undertakings.[17] The Respect@Work Inquiry identified that ‘as the positive duty is an ongoing duty, it shifts the emphasis from a complaints-based model to one where employers must continuously assess and evaluate whether they are meeting the requirements of the duty’.[18]
Introducing a positive duty in the Sex Discrimination Act would shift the burden of addressing sexual harassment from victim-survivors, and make employers responsible for taking proactive steps to protect people against sexual harassment at work. Given that evidence shows that the primary driver of sexual harassment is gender inequality,[19] a positive duty would likely lead to a greater focus on achieving substantive equality at work.
The Explanatory Memorandum notes that granting the AHRC the power to issue guidelines about compliance and promote public understanding of the positive duty ‘would enable the Commission to work collaboratively with employers to assist them in complying with the positive duty’.[20] This also presents an opportunity for the AHRC to raise awareness about evidence-based, best practice strategies for preventing sexual harassment, which is sorely needed given the overall ineffectiveness of organisational responses to workplace sexual harassment to date.
Increase in legal assistance
In December 2021, Victoria Legal Aid was notified that it will receive $3.16 million over four years to increase frontline legal support services to victim-survivors of workplace sexual harassment. A number of other legal aid commissions[21] and community legal centres[22] around Australia have also received increased funding for this purpose. This will increase the legal assistance sector’s capacity to assist individuals who have experienced sexual harassment at work and help realise the intentions of the legislative reforms.
WORK HEALTH AND SAFETY LAWS
Work health and safety laws across Australia impose a broad positive duty on a person conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of people at the workplace.[23] This broad duty requires PCBUs to eliminate or manage hazards and risks to a worker’s health, including psychological health and therefore sexual harassment.[24]
In recent years, several key reports[25] and numerous organisations have called for state and territory work health and safety laws to better recognise and regulate the prevalence of sexual harassment and other psychological harms in the workplace. This has led to a rapid cultural and institutional shift toward recognising that psychological hazards are no less harmful to workers’ safety than physical hazards.[26]
Nationally
At a national level, Safe Work Australia (SWA) has led significant changes and reforms to Commonwealth work health and safety laws. SWA published the Model Work Health and Safety Regulations and a Model Code of Practice: Managing psychological hazards at work.[27] The published Regulations and Code of Practice provide practical and specific guidance for employers about how to prevent, identify and address psychological hazards, such as sexual harassment in the workplace.
Victoria
In response to increasing recognition of the need to strengthen protections against psychological hazards at work, the Victorian Government recently published the Occupational Health and Safety Amendment (Psychological Health) Regulations 2021 (Vic) (Regulations). The Regulations are expected to come into force later this year and will outline the obligations of PCBUs to identify and control psychological hazards in the workplace, such as sexual harassment. The Victorian Government has also recommended that WorkSafe Victoria develop a psychological health compliance code to provide clear guidance on compliance with the Regulations and the Occupational Health and Safety Act 2004 (Vic).[28]
In 2021 the Victorian Government also established the Ministerial Taskforce on Workplace Sexual Harassment to specifically consider and recommend reforms that would better prevent and respond to sexual harassment at work. In July 2022, the Taskforce released 26 key recommendations to prevent workplace sexual harassment and gendered violence,[29] with a significant emphasis on increasing WorkSafe Victoria’s focus on preventing sexual harassment. The Taskforce recommended that WorkSafe:
• take a lead role in responding to work-related gendered violence and sexual harassment as an occupational health and safety issue;
• work with the Victorian Equal Opportunity and Human Rights Commission to strengthen its influence and role in the prevention of work-related gendered violence;
• develop comprehensive ‘industry-specific guidelines that support the Gendered Violence and Sexual Harassment Compliance Code’;[30]
• create dedicated projects to prevent work-related gendered violence and workplace sexual harassment; and
• establish a new employer de-identified reporting requirement for psychological health hazards, including work-related gendered violence.
The Victorian Government has accepted the above recommendations in full.[31]
WorkSafe Victoria has already taken steps to raise awareness of sexual harassment as a work health and safety issue by launching various advertisements and resources highlighting the responsibility of employers to prevent gendered violence, including sexual harassment, at work.[32]
Looking forward we expect to see a continuing national shift in the application of work health and safety laws towards a greater emphasis on employers fulfilling their obligations to prevent psychological hazards like sexual harassment and protect workers from psychological harm. We will also see regulators in this field working more closely and collaboratively with human rights commissions to fulfil complementary objectives under anti-discrimination laws.
NON-DISCLOSURE AGREEMENTS
Another area where future reforms are likely is with regard to the use of non-disclosure agreements (NDAs), sometimes referred to as ‘gag orders’ or confidentiality agreements in the context of settlement of disputes involving unethical conduct, such as sexual harassment. NDAs typically operate to restrict the way in which a survivor of sexual harassment can speak about their experience, both in public and private settings. The use of broad NDAs in the settlement of legal disputes about workplace sexual harassment has long been taken for granted. This has historically benefited the interests of employers and alleged perpetrators over the survivors’ interests and contributes to a culture of concealment and silence.[33]
The Respect@Work Report did not make specific recommendations for regulating the use of NDAs in sexual harassment matters. However, it did identify the need to develop a practice note or guideline outlining best practice principles for the use of NDAs in workplace sexual harassment settlements.[34] The Report identified that NDAs require regulation to combat the effect of silencing victims, protecting harassers and leaving employees feeling as though they have no other option than to sign an NDA to reach a settlement.[35]
A review into the misuse of NDAs was a central focus of the Victorian Ministerial Taskforce, which recommended legislating to restrict the use of NDAs in workplace sexual harassment settlements. While the recommendation was accepted in principle, the Victorian Government noted the complexity of NDAs and the significant further work and consultation required before making any legislative amendments to regulate NDAs.[36]
Regulating NDAs involves complex legal and ethical considerations: while limits on using NDAs may better protect victim-survivors against coercive and unethical practices, it may also restrict their freedom to choose how to resolve their disputes, for example by agreeing to a higher amount of compensation in exchange for a highly restrictive NDA.
Central to developing an understanding of how NDAs could be regulated in Victoria is Ireland’s Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021, which would limit the use of broad NDAs in discrimination and sexual harassment matters and introduce penalty provisions for non-compliant employers. If enacted, the Bill would only allow employers to enter into an NDA if: it is the employee’s 'expressed wish or preference’; the employee has been offered legal advice; there was no undue attempt to influence the employee; and the NDA is not contrary to the future interests of a third party or the public interest and is of limited duration. It would also prevent the NDA from restricting communications to certain parties, such as medical professionals, friends and family members.
While legislative regulation of NDAs remains uncertain, there has already been a decrease in the use of NDAs in practice, with some recent high-profile examples.[37]
CONCLUSION
Important progress has been made over the last 18 months to recognise the considerable harm caused by sexual harassment and improve protections for Australian workers. Specifically, we have seen a shift towards recognising the psychological impact of sexual harassment as a work health and safety hazard and acknowledgment that the burden of addressing it has been borne primarily by victim-survivors and must shift to employers. The reforms introduced to date have been accompanied by increased funding to legal aid commissions and community legal centres to assist victim-survivors of sexual harassment. While further change is needed to ensure that Australia effectively deals with sexual harassment – including by achieving gender equality more broadly – there is cause for optimism about the positive impact that recent and imminent reforms will have on the health, safety and experience of workers in Australia.
Melanie Schleiger (Program Manager), Sally Latter (Lawyer) and Jen Lynch (Senior Lawyer) are all lawyers working in Victoria Legal Aid’s specialist discrimination law service, the Equality Law Program. Over the past five years this service has provided over 1,000 legal advice sessions about sexual harassment and sex discrimination. EMAIL EOLS@vla.vic.gov.au.
Rachel Athaide was formerly a Lawyer in VLA’s Equality Law Program and is now a Senior Lawyer in WEstjustice’s Employment and Equality Law Program.
[1] Australian Human Rights Commission, Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces (2018) 26.
[2] Fair Work Act 2009 (Cth) (Fair Work Act), s387.
[3] Fair Work Regulations 2009 (Cth), r1.07(3)(a)(iv).
[4] Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), s46PH(1)(b)(i).
[5] Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act), s28AA. ‘Sex-based harassment’ is defined as ‘unwelcome conduct of a seriously demeaning nature’ by reason of the person’s sex in circumstances in which a reasonable person would have ‘anticipated the possibility that the person harassed would be offended, humiliated or intimidated’. However, the recently introduced Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect at Work Bill 2022) proposes to remove the word ‘seriously’ from this provision.
[6] Sex Discrimination Act, s105.
[8] Fair Work Commission, Orders to stop sexual harassment benchbook (2021) <https://www.fwc.gov.au/benchbook/sexual-harassment-benchbook>.
[9] Ibid, 70.
[10] Ibid, 75.
[11] This risk is low, but unclear: AHRC Act, ss46PH(1)(d), 46PH(1)(f); Fair Work Act, ss725, 734; Victorian Civil and Administrative Tribunal Act 1998 (Vic), s75.
[12] Fair Work Act, s789FF(1).
[13] I Dekker and J Barling, ‘Personal and organizational predictors of workplace sexual
harassment of women by men’, Journal of Occupational Health Psychology, Vol. 3, 1998, 7 at 14; JB Pryor and JJ Whalen, ‘A typology of sexual harassment: Characteristics of harassers and the social
circumstances under which sexual harassment occurs’ in W O’Donohue (Ed), Sexual
Harassment: Theory, Research, and Treatment, Allyn & Bacon, 1997, 131–4.
[14] Victoria Legal Aid and other organisations have advocated adopting the objective of achieving ‘substantive gender equality’ rather than using gender binary language.
[15] See above note 7.
[16] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth), sch 1, pt 8.
[17] Respect at Work Bill 2022, sch 2, pts 1 and 2.
[18] Australian Human Rights Commission, Respect@Work: Sexual Harassment National Inquiry Report (Report, 29 January 2020) (Respect at Work Report) 479.
[19] Ibid, 18. Citing K Webster and M Flood, Framework Foundations 1: A Review of the Evidence on Correlates of Violence against Women and What Works to Prevent It; companion document to Our Watch, Australia’s National Research Organisation for Women’s Safety (ANROWS) and Victorian Health Promotion Foundation (VicHealth), Change the Story: A Shared Framework for the Prevention of Violence against Women and their Children in Australia (2015) 15, 21.
[20] Explanatory Memorandum, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth) 6, 19.
[21] In addition to Victoria Legal Aid, this includes NSW Legal Aid, Legal Aid Queensland and Legal Aid WA.
[22] For example, JobWatch, WEstjustice, Disability Discrimination Legal Centre, South-East Monash Legal Services and Villamanta Disability Rights Legal Service will all provide these services in Victoria.
[23] Model Work Health and Safety Bill (April 2022), which has been largely adopted by all states and territories except Victoria; Occupational Health and Safety Act 2004 (Vic).
[24] Model Work Health and Safety Bill (April 2022), s17.
[25] M Boland, Review of the model Work Health and Safety laws – Final report (December 2018); Respect at Work Report, above note 18; Australian Government Productivity Commission, Mental Health Inquiry Report, Vol. 1, No. 95 (30 June 2020).
[26] WorkSafe Victoria, Mental Health Strategy 2021 to 2024 (November 2021) and WorkSafe Victoria, Preventing and managing work-related stress: A guide for employers (February 2021).
[27] Safe Work Australia, Code of Practice: Managing psychosocial hazards at work (July 2022); Safe Work Australia, Preventing workplace sexual harassment: National Guidance Material (January 2021); Work Health and Safety Regulations 2011 (Cth).
[28] Victorian Government, Victorian Government response to the Ministerial Taskforce on Workplace Sexual Harassment (accessed 31 October 2022) 7 <https://www.vic.gov.au/ministerial-taskforce-workplace-sexual-harassment>.
[29] Victorian Government, Ministerial Taskforce on Workplace Sexual Harassment – Recommendations (accessed 11 July 2022) <https://www.vic.gov.au/ministerial-taskforce-workplace-sexual-harassment>.
[30] Ibid, 3.
[31] Victorian Government response to the Ministerial Taskforce on Workplace Sexual Harassment (accessed 8 September 2022), above note 28, 4–19.
[32] WorkSafe Victoria, Work-related gendered violence including sexual harassment (March 2020) and Preventing and managing work-related stress: A guide for employers, above note 26.
[33] Respect at Work Report, above note 18, 557.
[34] Ibid, 564.
[35] Ibid, 563.
[36] Victorian Government response to the Ministerial Taskforce on Workplace Sexual Harassment, above note 28, 10.
[37] J Evans, ‘Former Coalition staffer Rachelle Miller releases details of $650,000 settlement’, ABC News, 6 September 2022 <https://www.abc.net.au/news/2022-09-06/rachelle-miller-release-commonwealth-alan-tudge-ash-settlement/101408588>; L Tingle and J Elton, ‘“You destroyed my love for the law”: Alex Eggerking on working for Dyson Heydon at the High Court’, ABC News, 16 February 2022 <https://www.abc.net.au/news/2022-02-16/alex-eggerking-dyson-heydon-sexual-harassment-high-court/100835876>.
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2022/60.html