In March 2020, the Respect@Work: Sexual Harassment National Inquiry Report found Australia’s current sexual harassment framework to be complex, confusing, reactive and over-reliant on individual complainants. Complainants can currently go to an array of State and Commonwealth authorities each with their own different remedies and penalties. The process for initiating a formal complaint, selecting the most appropriate forum and for pursuing a complaint has proven to be less than adequate.
Among the introduced changes are:
- New powers to the Fair Work Commission for anti-sexual harassment orders similar to anti-bullying orders.
- Specifying that sexual harassment can amount to a valid reason for dismissal in section 387 of the Fair Work Act 2009 (Cth).
- Extending the time to bring a complaint to the Australian Human Rights Commission from 6 months to 24 months after the alleged conduct.
- New powers to the Australian Human Rights Commission:
- to prepare guidelines for the avoidance of discrimination involving sexual harassment or harassment on the ground of sex, and
- to intervene in proceedings that involve issues of discrimination involving sexual harassment or harassment on the ground of sex.
- Under the Sex Discrimination Act 1984 (Cth):
- a new, broader definition of 'harassment on the ground of sex' in addition to sexual harassment, and
- specifying that Commonwealth and State public servants, MPs and judges are subject to the laws.
A recommendation of Respect@Work that was not adopted by the Federal Government was a positive duty on employers to take reasonable measures to eliminate sexual discrimination. The Government noted that, as sexual harassment is a safety issue, workplace safety laws already impose positive duties on employers.
Meanwhile, a Victorian taskforce is developing strategies to target sexual harassment in workplaces. A key point of consultation is the development of mandatory incident notification to WorkSafe following incidents or allegations of sexual harassment. We expect that compulsory notification schemes will be explored by safety regulators in other jurisdictions.
If you require further information or have any queries in relation to this legal update, please contact Matthew Smith.
We would like to acknowledge the contribution of Lachlan Thomas to this article.
