On 8 April 2021, the Federal Government released its Roadmap for Respect (Roadmap), which sets out a blueprint for taking proactive steps to stamp out sexual harassment, an approach all employers should consider.
The Roadmap has been released in response to the Australian Human Rights Commission (AHRC) report [email protected]: A National Inquiry into Sexual Harassment in Australian Workplaces (report).
The AHRC 2018 survey found 33 per cent of people who have been in the workforce in the past 5 years have experienced sexual harassment. Women and vulnerable groups – such as workers aged under 30, LGBTQI, Aboriginal and Torres Strait Islanders and migrant workers – are the most likely to be affected.
According to the report, “Workplace sexual harassment is prevalent and pervasive: it occurs in every industry, in every location and at every level, in Australian workplaces”.
In the Roadmap, the Federal Government outlined it has agreed to all 55 recommendations from the report, either in whole, part, principle or noted. The Federal Government has announced its intention to introduce legislation in Parliament by the end of June 2021. In preparation, employers should consider what actions to implement to ensure they address and respond to inappropriate workplace behaviour.
Both the Roadmap and the report call for the response to shift from a reactive, complaints-based approach in responding to sexual harassment, to one that requires positive actions from employers and a focus on prevention. This shift means a greater onus on employers to ensure active steps are taken to prevent sexual harassment from occurring.
What are the key legislative changes?
The Government has announced it will introduce legislation to amend the Fair Work Act 2009, Fair Work Regulations 2009, Sex Discrimination Act 1984 and Australian Human Rights Commission Act 1986 to:
- clarify that sexual harassment can provide a ‘valid reason’ for dismissal in determining whether an employee has been unfairly dismissed;
- include sexual harassment in the definition of ‘serious misconduct’;
- ensure the Sex Discrimination Act 1984 applies to sexual harassment;
- ensure victimisation under the Sex Discrimination Act 1984 may form the basis of a civil action for unlawful discrimination;
- extend the time limitation for complaints under the Sex Discrimination Act 1984 in the AHRC to 24 months (rather than the current 6 months);
- extend the Sex Discrimination Act 1984 to include judges and Members of Parliament; and
- extend ‘stop bullying orders’ in the Fair Work Commission to include sexual harassment.
These changes mark a departure from the existing laws in a material manner by simplifying and strengthening the national framework, and placing an emphasis on the prevention of sexual harassment.
What can you do to prepare?
In response to the Roadmap, you should take the following three key steps:
- Review and reflect on the culture of your workplace: The risk of sexual harassment is reduced where people working together value the importance of mutual respect. A culture of mutual respect is achieved by frequent and consistent reinforcement of the importance of appropriate behaviours by organisational leaders.
- Review workplace policies: Review the policies and procedures in the place for managing misconduct, respect in the workplace or equal employment opportunity, and investigating complaints. Consider if the policies are reactive or proactive in protecting employees from sexual harassment. If your policies are solely reactive to sexual harassment, you should implement policies that reinforce expectations of fair, respectful and reasonable treatment between co-workers. You must also consider the accessibility of your current complaint procedures, particularly for vulnerable employees. It is important to retain flexibility in the policies to allow different approaches to be taken to resolve complaints. For example, committing to have every complaint subject to a formal investigation may have an adverse impact on some complainants.
- Train employees, managers, senior executives and board members: A key contributing factor of sexual harassment is a lack of understanding what behaviour constitutes ‘sexual harassment’. In response, consider reviewing your current training programs and determining whether they are fit for purpose.