On 8 April 2021, the Prime Minister and Attorney General publicly endorsed the recommendations of the Respect@Work Report commissioned from the Sex Discrimination Commissioner, Kate Jenkins.
Of most interest to employers was the Federal Government’s commitment to ‘simplifying and strengthening the legal framework, existing rights and obligations for employees and employers’.
What to expect
Some of the specific recommendations in the Report and noted in the Government announcement were:
- clarifying the provisions of the Fair Work Act to enable Stop Bullying Orders (SBOs) to expressly include use against sexual harassment (to be referred to as a ‘stop sexual harassment order’);
- amending section 387 of the Fair Work Act to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable;
- amending the definition of ‘serious misconduct’ in the Fair Work Regulations to include sexual harassment;
- amending the model Work Health Safety (WHS) Regulations 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;
- amending the Sex Discrimination Act to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation, as far as possible. This change is subject to the Federal Government’s assessment of whether such an amendment would create further complexity, uncertainty or duplication in the overall legal framework, given the current WHS Regulations; and
- requiring collection of data at workplace and industry level, to help improve understanding of the scope and nature of the problem posed by sexual harassment. In this vein, the Government supports the Report’s recommendation for the ASX Corporate Governance Council to introduce sexual harassment indicators for ASX-listed entities to report against.
The Government announcement also expressed support for extending the scope of the Sex Discrimination Act to judges and members of parliament, and stated that the Government will work with states and territories to remove the current exemption of state public servants.
How significant would these changes be for employers?
Most employers already have policies prohibiting sexual harassment, and treat sexual harassment as serious misconduct and a basis for summary dismissal.
Further, there is already case law which imposes significant obligations on employers to take proactive steps in relation to sexual harassment so as to avoid becoming vicariously liable for sexual harassment perpetrated within the workforce.
The obligation to prevent harassment was considered last year in Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2), where Boral was found vicariously liable under Federal legislation for an employee’s conduct because it failed to take all reasonable steps to prevent the employee from engaging in sexual harassment toward another employee.
Significantly, the Full Bench of the Federal Court observed that Boral’s training session on its workplace policy ‘Working with Respect’ only contained two slides on sexual harassment, and there was no evidence that the training included any statements by Boral that sexual harassment was unlawful, that disciplinary action would be taken in cases where sexual harassment was proven, or what that disciplinary action would be.
Ultimately, the Court recognised that ‘what steps are reasonable will depend upon the whole of the circumstances, including the size of the organisation, the nature of its workforce, the conditions under which the work is carried out and any history of unlawful discrimination or sexual harassment’, but that ‘it is not enough to demonstrate that the employer took some of the reasonable steps available to prevent the employee from doing the unlawful act.’
To comply with the test set by the Court in Boral Timber, employers must (at the very least) ensure that workplace policies and training include clear statements that:
- sexual harassment is against the law and employer policy;
- the employer will regard sexual harassment complaints very seriously;
- specific disciplinary actions may follow, if such complaints are proven; and
- deter unlawful discrimination and sexual harassment through education both about their effects on victims, and about consequences for perpetrators and employer;
Documentary evidence is required – not just that employees have read company policies and attended training sessions, but also that they understand the content of the policy and training.
The Government’s proposed legislative changes will impose clear, and often greater, obligations on employers to engage proactively in education programs, improve their investigation and data-collection processes, and generally adopt what is described in the Report as a ‘victim-centred approach‘. For example, the proposed amendments to the WHS Regulations may ultimately lead to prosecutions if an employer has failed to take reasonably practicable steps to prevent psychological injury resulting from sexual harassment, for example by failing to prevent harassment from occurring, or mishandling an investigation when it does occur.
The Federal Government expects to have legislation drafted by the end of June 2021. It is fair to assume from what has been said so far (especially in the context of the recent case law), that employers will be required to review:
- their policies relating to workplace sexual harassment;
- their grievance policies, including how they support employees who make sexual harassment complaints, and their procedures for fact finding and responding to complaints of sexual harassment;
- the workplace materials and training available for employees and officers on the subject of sexual harassment; and
- how incidents of sexual harassment are recorded (with due regard given to how such information is kept confidential) and how that data is applied to reduce such conduct in future.
The way forward is likely to be subject to debate, and change will take time, but there is significant bipartisan and social support for that change – to ensure that all Australian workplaces are subject to proper and consistent standards.
For further information, please contact our national Employment, Workplace Relations and Safety team.