Employers need to do more to prevent sexual harassment

Employers will need to step up their efforts to prevent sexual harassment in the workplace to comply with new legislation. 

Relying on a set-and-forget policy and a grievance process to address unlawful discrimination, including sexual harassment, is unlikely to be enough, members at an Ai Group webinar heard last week.  

“It’s very much about ensuring sexual harassment and unlawful discrimination are identified as behaviours that need to be prevented in the first place,” said Nicola Street, Ai Group’s Director, Workplace Relations Policy, Diversity, Equity & Inclusion. 

As part of its pre-election commitment to implement all outstanding recommendations of the Respect@Work Report, the Federal Government has released two significant pieces of amendment legislation: the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect at Work Bill) and the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Secure Jobs, Better Pay Bill). 

The Respect at Work Bill 2022 passed both Houses of Parliament on Monday while the Secure Jobs, Better Pay Bill remains before the Senate but is likely to be passed.  

Both will introduce new legal frameworks impacting employer obligations in how workplace sexual harassment is prevented and addressed.  

Recent changes in work, health and safety (WHS) laws will also play a part in framing how employers prevent unlawful sexual harassment. 

Employers already have obligations for prevention of psychological risks under health and safety laws but these are being emphasised by new regulations and codes of practice progressively being adopted around the country. 

Creating a new, statutory “positive duty” on employers to take reasonable and proportionate measures to eliminate, as far possible, unlawful sex discrimination and workplace sexual harassment is one of the key changes of the Respect at Work Bill. 

One in three people have experienced sexual harassment in the past five years, according to the Fourth National Survey of Sexual Harassment in Australian workplaces.

New survey results reporting on the prevalence of sexual harassment have just been released.  

The most common form of sexual harassment is verbal: innuendo, jokes and suggestive comments. 

”It’s important to bear that in mind when we're talking about cultural change, which is what the Respect@Work reforms are trying to frame for many businesses,” Ms Street said. 

“It's also important to understand that sexual harassment is not just an event that occurs at Christmas parties or at out-of-work events with alcohol. 

“In fact, most sexual harassment occurs at a victim’s workstation and is witnessed by others. Many witnesses don't intervene, presumably because they're not comfortable in doing so.” 

Fewer than one in five people (17%) make a formal report or complaint in relation to workplace sexual harassment. 

“If you're a large organisation that simply relies on a policy and a grievance process as a way of addressing sexual harassment, it is unlikely that this will be enough to comply with these new laws,” Ms Street said. 

The duty extends to identified unlawful conduct towards workers by third parties including the general public and customers. 

However, it will not be subject to the Anti-Discrimination and Human Rights Commission’s (AHRC) compliance powers until 12 months after the Act commences.   

Duty-holders will have a year to establish processes and systems to visibly demonstrate how the organisation complies with the positive duty to eliminate workplace sexual harassment and discrimination. 

They would also need to incorporate a risk-assessment approach, including specific guidance on harassment and discrimination in a remote context and support available to staff. 

“The positive duty should be built around the risk factors involved in your operation and appropriate avenues the organisation should and can take to eliminate workplace sexual harassment and unlawful discrimination,” Ms Street said. 

“The measures that organisations develop to comply with the positive duty should assist those organisations to demonstrate that it took all reasonable steps to prevent the unlawful conduct, currently required by the defences in the Sex Discrimination Act.” 

There are health and safety obligations to consider, as well. 

Fellow presenter Tracey Browne, Ai Group’s Manager - National Safety & Workers’ Compensation Policy and Membership Services, said: “While the Respect at Work and Fair Work obligations are important, it's crucial to also apply the full risk-management requirements of health and safety laws. 

“Sexual harassment has been identified as one of the 14 psychosocial risks in the model WHS code. It has been specifically called out as a risk that employers need to deal with. 

“In recent times, there has been a lot of work put into increasing awareness around employers’ obligations for psychosocial risks. Now we are seeing regulations being introduced.” 

The model WHS laws are developed at a national level but have no status unless they are adopted into law in individual jurisdictions. 

States and territories have different codes but emphasise the need to eliminate, minimise or reduce risk, so far as is reasonably practicable. 

“So, while the examples in the explanatory memorandum for the Respect at Work Bill talk about policies, procedures and training directly related to sexual harassment, health and safety laws look at other areas of control,” Ms Browne said.  

These include factors such as: 

• the design of work, including job demands and tasks, 
• systems of work including how work is managed, organised and supported and  
• the design, layout and environmental conditions in the workplace. 

“It's very much about delving into how we work and looking at whether we are creating hazards that may lead to an increased likelihood of there being sexual harassment in the workplace,” Ms Browne said.  

“Consultation remains a crucial part of risk management in health and safety. This is particularly important in managing psychosocial risks. We need to ensure we're getting information from workers about what might be creating risks in the workplace that we are not aware of. 

“There might be people working remotely who won’t have witnesses to sexual harassment because it will all be online. 

“The key takeaway is that if you’re looking to fulfil your Respect at Work obligations, make sure you engage with your safety people and have a consolidated way of dealing with it.”  

Ai Group Workplace Lawyers has a national team of trained investigators able to investigate allegations of sexual harassment, sex-based harassment, victimisation and other forms of unlawful workplace behaviour, such as bullying and discrimination, within the framework of the new Respect@Work laws and modern standards. Contact us at info@aigroupworkplacelawyers.com.au for assistance.

Respect@work advice for employers