A roadmap for respect: proposed reforms for workplace sexual harassment laws

With the Australian Human Rights Commission’s Respect@Work Report detailing that almost two in five women (39%) and just over one in four men (26%) experienced sexual harassment in the workplace in the five years leading up to 2018, sexual harassment in the workplace has been described as prevalent and pervasive, occurring in ‘every industry, in every location and at every level, in Australian workplaces.’

On the back of the National Inquiry, that examined the current state of sexual harassment laws in Australia, the Commission made 55 recommendations to address the ongoing prevalence of sexual harassment in the workplace. These included making recommendations for widespread legislative reform.

On 8 April 2021, the Australian Government published its Roadmap for Respect, responding to all 55 of the Australian Human Rights Commission’s recommendations and providing what it labelled as a ‘clear and comprehensive path forward for Australia to prevent and address sexual harassment’ in the workplace.

While no draft legislation has been introduced to parliament at this time, employers should prepare themselves for legislative changes to be made in the following key areas.

What changes are proposed?

Unfair dismissal – clarification that sexual harassment can be a valid reason for dismissal and serious misconduct

Currently, the Fair Work Act requires the Fair Work Commission to consider a number of criteria when determining whether a dismissal is ‘harsh, unjust or unreasonable’, including whether there was a valid reason for the dismissal relating to the person’s capacity or conduct.

Despite the Report acknowledging that Australian courts and commissions have recognised that engaging in sexual harassment can be a valid reason for dismissal, it identified that:

• a misconception exists within Australian workplaces that unfair dismissal provisions prevent employers from dismissing employees who have engaged in sexual harassment
• the Fair Work Commission has on a number of occasions awarded sums to employees due to an employers’ failure to comply with procedural requirements, despite finding there was a valid reason for dismissal due to sexual harassment.

In response, the Roadmap proposes amending:

• the Fair Work Act, clarifying that sexual harassment can be conduct amounting to a valid reason for dismissal, with the intention that it is also weighted appropriately against procedural and other factors
• the definition of ‘serious misconduct’ in the Fair Work Regulations to include sexual harassment, in order to clarify that this type of conduct within the workplace can justify summary dismissal.

Accessorial liability for sexual harassment

Under the federal Sex Discrimination Act 1984 (Cth), those who cause, instruct, induce, aid or permit another person to do an act are also taken to have done that act. Currently, these provisions do not apply to sexual harassment, unless the conduct also amounts to discrimination.

The Roadmap proposes amending this section to ensure that it applies to sexual harassment, creating accessorial liability for those who are deemed to have caused, instructed, induced, aided or permitted another person to do an act of sexual harassment.

Civil action for victimisation

The Sex Discrimination Act currently contains victimisation provisions that make it unlawful for a person to engage in retaliatory action, or the threat of retaliatory action, against a person because they made a complaint of sexual harassment or because they took action in support of a complaint.

The Roadmap proposes amending the Australian Human Rights Commission Act 1986 (Cth) to make it clear that victimisation can be the basis of civil action for unlawful discrimination and to clarify that those who have their complaints of victimisation terminated by the Australian Human Rights Commission are able to apply to the Federal Court or Federal Circuit Court.

Extended time limit for complaints

While there is no timeframe for lodging a complaint of sexual harassment with the Australia Human Rights Commission, the President of the Commission has the discretion to terminate a complaint lodged more than six months after the alleged sexual harassment took place.

The Roadmap recognises that the six-month time frame does not take into account the complexity of reasons why a victim may delay making a sexual harassment complaint, and proposes extending the timeframe for exercising the discretion to terminate to 24 months.

‘Stop bullying’ order includes sexual harassment

The Fair Work Act enables a worker to apply for a ‘stop bullying’ order if:

• a person or group of people repeatedly behave unreasonably towards the worker (or a group of workers of which the worker is a member)
• the behaviour creates a risk to health and safety.

Despite the Report recommending the introduction of an equivalent ‘stop sexual harassment order’, the Roadmap outlines that the Government is of the view the objective will be achieved with greater simplicity by clarifying that a ‘stop bullying order’ is available in the context of sexual harassment.

Conclusion

With the Roadmap indicating legislative reform is on the horizon, the way sexual harassment is viewed in the workplace is set to change. With broader avenues for victims, and increased recourse for employers, it is important all parties are aware of their obligations under workplace health and safety law. For employers, this means taking steps to eliminate or minimise the risk of sexual harassment in the workplace, which may change as a result of the reforms outlined above.