Candice Parsons
In light of the #MeToo and #TimesUp movements, the Australian Human Rights Commission was appointed to undertake a national inquiry into sexual harassment in Australian workplaces. The Respect@Work report was published in 2020 and outlined 55 recommendations to eliminate workplace sexual harassment. In response, the Government passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) in September to give effect to some of the report’s recommendations.
Missing from the Government’s amendments was the central recommendation of the inquiry, which was the imposition of a positive duty in the Sex Discrimination Act 1984 (Cth) on employers to implement preventative measures to protect employees from workplace sexual harassment.
The failure to adopt the key recommendation of the inquiry means that the shortcomings of the current regulatory system have not been adequately addressed, and will continue to fall short of protecting the right to freedom from sexual harassment in the course of employment.
The right to freedom from workplace sexual discrimination
While Australia does not have a national human rights act, Australia is a party to the fundamental treaty that gives rise to protection from discrimination, including sexual harassment in the workplace.
In 1983, Australia ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and subsequently passed the Sex Discrimination Act 1984 (Cth)(SDA). The introduction of the SDA marked the implementation of Australia’s international obligations under CEDAW to eliminate discrimination based on gender.
Article 11 of CEDAW requires States to eliminate sexual harassment in the workplace as it is a form of workplace discrimination. To give effect to Article 11, Section 28B of the SDA specifically makes sexual harassment in the workplace unlawful.
Australia’s workplace harassment laws under review
Australia’s implementation of CEDAW into domestic law put Australia at the forefront of sexual discrimination prevention internationally. However, contemporary domestic policy has stalled its progress in tackling the prevalence and systemic nature of workplace sexual harassment. According to the Australian Human Rights Commission’s National Survey conducted every five years, one in three people experience sexual harassment at work.
A constant theme that arose from the inquiry was that the largest deterrent for reporting sexual harassment in the workplace was the current complaints-based approach, which places the burden on the individual to report the harassment. Due to fears regarding the impacts on their career prospects, reputation and relationships in their workplace or industry, individuals are less likely to come forward to report these incidents.
The inquiry also found that despite current workplace health and safety (WHS) laws, including a positive duty on employers to prevent sexual harassment in the workplace by eliminating health risks to employees, the existing protection isn’t adequate. The lack of expressed WHS guidelines means that there is a lack of enforcement and consistency in its application by employers. Furthermore, the WHS laws are incredibly complex and are not likely to be the most appropriate method for dealing with these matters.
To address this issue, the Respect@Work inquiry endorsed an amendment to the SDA to include a positive duty requiring employers to take reasonable and proportionate measures to eliminate sexual harassment in the workplace. Introducing a positive duty for employers to take reasonable preventative steps to eliminate sexual harassment shifts a substantial burden from individuals to a more proactive response from businesses within a human rights framework provided by the SDA.
The benefits of introducing a positive duty were made clear by the report. However, the Government refused to implement the duty due to its existence in WHS laws already and concerns that the amendment of the SDA may cause further complexity in the existing framework.
Whilst these may be legitimate policy concerns, the Government response was still met with significant disappointment considering the inquiry had already addressed the failings of the current protection offered by the positive duty in WHS law. Furthermore, the Sex Discrimination Commissioner emphasised that the positive duty proposed for the SDA has existed in the Victorian Equal Opportunity Act 2010 (Vic) without evidence of ‘any adverse impact on business’.
The future of Australia’s workplace sexual harassment framework
While the implementation of a number of the Respect@Work Inquiry’s recommendations demonstrates a positive step towards change, the reforms lack substantive amendments that would ensure more rigorous protection of individual rights in the workplace.
As the Sex Discrimination Commissioner Kate Jenkins noted, sexual harassment is not inevitable, it is preventable. It is crucial that we demand more robust reform to ensure Australia upholds the fundamental right to be free from sexual harassment in places of employment.
Candice Parsons is in her penultimate year of a Bachelor of Arts/Bachelor of Laws and took part in an internship with the Australian Human Rights Institute in Term 3 2021.