Article by: Michael Selinger, Partner, Holding Redlich
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On 8 April 2021, the Federal Government released their 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’s (AHRC) ‘Respect@Work: 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 five years have experienced sexual harassment. Women and vulnerable groups, such as workers under 30, LGBTQI+, Aboriginal and Torres Strait Islanders and migrant workers are the most likely to be affected.
“Workplace sexual harassment is prevalent and pervasive: it occurs in every industry, in every location and at every level, in Australian workplaces” – Respect@Work
In the Roadmap, the Federal Government outlined it has agreed to all 55 recommendations, 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 which 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 Regulation 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 applies to sexual harassment
- ensure victimisation under the Sex Discrimination Act may form the basis of a civil action for unlawful discrimination
- extend the time limitation for complaints under the Sex Discrimination Act in the AHRC to 24 months (rather than the current six months)
- extend the Sex Discrimination Act to include judges and Members of Parliament
- 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?
As we outlined in our previous article here, the recent spotlight on Australian workplace culture and sexual harassment highlights the legal risk for employers who neglect their obligations to address sexual harassment in the workplace. In response to the Roadmap, employers should review their practices to reduce the risk of sexual harassment and ensure a safe workplace for employees. We outline three key steps below.
1. 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.
Does your organisation have a culture that indirectly fosters sexual harassment? Ask yourself the following:
- would an employee who is affected by sexual harassment feel confident that it would be handled appropriately if they raised the matter with their manager? Would they know how to? Do you know how the matter would be then handled?
- is respect in the workplace viewed as something that Human Resources handles or are managers involved in the issue?
- are your organisation’s leaders good role models for appropriate workplace behaviour?
- are employees aware of the legal consequences for themselves and their employer if they engage in inappropriate workplace behaviour?
2. Review workplace policies
Employers should review their policies and procedures in the place for:
- managing misconduct
- respect in the workplace or equal employment opportunity
- investigating complaints.
Employers should look at their policies holistically. They should consider if the policies are reactive or proactive in protecting employees from sexual harassment. If an employer’s policies are solely reactive to sexual harassment, employers should implement policies that reinforce their expectations of fair, respectful and reasonable treatment between co-workers.
Employers should also review their current complaint procedures. As part of the review, employers should consider the accessibility of the process, 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.
3. Training for employees, managers, senior executives and board members
A key contributing factor of sexual harassment is a lack of understanding of what behaviour constitutes ‘sexual harassment’. In response, employers should consider reviewing their current training programs and whether they are fit for purpose.
If you would like any further information to prepare for the legislative changes, or assistance preparing training modules and reviewing policies, please contact us.
Authors: Michael Selinger, Jennifer van Bronswijk & Olivia Lawrence
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.