2. Violence and harassment convention

International Labour Organization Convention concerning the elimination of violence and harassment in the world of work (No. 190)

Background

2.1The International Labour OrganizationConvention concerning the elimination of violence and harassment in the world of work(No. 190) (the Convention) is the first international instrument that commits International Labour Organization (ILO) Members to respect, promote and realise the right of everyone to a world of work free from violence and harassment, including gender-based violence and harassment. The Convention:

• contains the first internationally recognised definition of ‘violence and harassment’[1]
• identifies gender-based violence and harassment as a specific concern[2]
• extends the scope of ‘workplace’ by incorporating it into the concept of a ‘world of work’ which includes public and private spaces that are a place of work, and places linked with work[3]
• extends the scope beyond ‘workers’ to include the full range of traditional and non-traditional work.[4]
  2. The Convention also binds Members to adopt an ‘inclusive, integrated and gender-responsive approach’ to preventing and eliminating violence and harassment in the world of work, which binds the individual elements of the Convention together.[5]
  3. Australia’s response to the Convention has been framed by the Australian Human Rights Commission’s (AHRC’s) National Inquiry into Sexual Harassment in Australian Workplaces, which occurred concurrently with the ILO adopting the Convention. The AHRC advised the Committee that the resulting Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report (Jenkins Report), drew on the ILO’s work in the Convention, and that as a consequence, it was:

… not a complete coincidence that many of our recommendations ultimately align with what that convention has recommended.[6]

2.4The Jenkins Report made 55 recommendations, including that Australia ratify the Convention (Recommendation 15).[7] The Australian Government has committed to implementing all 55 recommendations.[8] The National Interest Analysis (NIA) claimed that ratifying the Convention would build on a tranche of legislative changes and policy initiatives, some of which implement Jenkins Report recommendations.[9]

International Labour Organization

2.5The ILO was established as part of the Treaty of Versailles in 1919.[10] The ILO is a tri-partite institution, comprising representatives of government, employers and employees.[11] ILO treaties (referred to as ‘standards’) are drafted and adopted by the International Labour Conference, an annual meeting comprising delegations from every member state.[12] Australia's delegation to the International Labour Conference comprises representatives of the Australian Government, the Australian Council of Trade Unions (ACTU), and the Australian Chamber of Commerce and Industry. Both the ACTU and the Australian Chamber of Commerce and Industry supports ratification of the Convention. All states and territories also support the ratification of the Convention.[13]

Developing the Convention

2.6According to Ms Lisa Heap, a member of the Worker’s Group on the ILO Standard Setting Committee on violence and harassment in the world of work, the body which negotiated the content of the Convention, the negotiation and adoption of the Convention followed more than a decade of activism by women in the global union movement and other women’s organisations calling for an ILO instrument dealing with the prevention of gender-based violence in the workplace.[14]

2.7Work on the Convention commenced in November 2015, when the Governing Body of the ILO decided to examine the possibility of establishing an ILO standard on violence against women and men in the world of work.[15] In doing so, the ILO identified a number of issues with existing labour standards:

• the lack of data on the extent of violence and harassment at work[16]
• the absence of an internationally recognised definition of violence and harassment[17]
• the absence of guidance on how to address the various manifestations of violence and harassment[18]
• the narrow understanding of ‘workplace’ did not reflect the evolving nature of work as it did not cover commuting to/from work, work-related social events, work in public spaces (including for informal workers), remote and home working, domestic workers, and informal economy workers[19]
• the lack of an integrated approach to addressing violence and harassment at work.[20]
  8. The resulting Convention was adopted at Geneva on 21 June 2019 and entered into force on 25 June 2021.[21] As of 14 May 2023, 25 Members had ratified the Convention.[22]
  9. Professor Sean Cooney, who worked at the ILO between 2014 and 2016, and was involved in a number of the early meetings about the Convention, described the Convention as ‘one of the most significant ILO instruments that has been adopted in recent decades,’ because it advances the concept of safe, healthy and non-discriminatory workplaces, and extends the definition of work to include gig work, informal work, labour hire and work from home, which are becoming prevalent across the globe.[23]

Data on violence and harassment at work in Australia

2.10As discussed above, one of the issues identified by the ILO while developing the Convention was the lack of reliable statistics on the extent of violence and harassment at work.[24] The Convention itself does not contain mechanisms for collecting reliable statistics, but since the negotiation of the Convention there has been a focus, both by the ILO and in Australia, on obtaining reliable statistics.[25]

2.11No organisation in Australia collects comprehensive data on the extent of violence and harassment at work. The AHRC advised the Committee that one of the five areas the Jenkins Report made recommendations was in relation to research and data. In particular, the Jenkins Report identified that more detailed work was needed on particular groups of vulnerable workers.[26] According to the Jenkins Report:

… there is little consistency in the data collected or reported by human rights and anti-discrimination agencies on sexual harassment complaints. For many indicators (such as the complainant’s age and employment status and respondent’s industry), data was not collected systematically by all jurisdictions.[27]

2.12However, there were two national surveys that included some data on violence and harassment at work:

• the Australian Bureau of Statistics’ (ABS’s) Personal Safety, Australia survey, published in 2017
• the AHRC’s semi-regular surveys of sexual[28] harassment in Australian workplaces, of which the latest is Time for respect: Fifth national survey on sexual harassment in Australian workplaces, 2022 (Time for Respect survey).
  13. Collectively, the Personal Safety, Australia and the Time for Respect surveys provide the most helpful, but still incomplete, picture of the extent of violence and harassment in Australian workplaces. They point to violence and harassment at work being a pervasive and underreported problem.

Personal Safety, Australia survey

2.14The Personal Safety, Australia survey covered violence and threats of violence,[29] including the type of violence or threat experienced, and the perpetrator’s relationship with the respondent which included some work-based relationships.[30] The table below is an extract of Table 3.1 from Personal Safety, Australia survey where the violence and threats of violence involved work-based relationships.

Source: ABS, ‘Personal Safety, Australia’, 2017, Table 3.1.

2.15The ABS did not collect data on harassment as it relates to workplaces for this survey.

Time for Respect survey

2.16The Time for Respect survey[31] found that, in the five years prior to the survey:

• 33 per cent of Australians in the workforce experienced sexual harassment[32]
• women (41 per cent) were more likely than men (26 per cent) to have experienced sexual harassment at work[33]
• there was a higher incidence of workplace sexual harassment among people identifying as gay (40 per cent),[34] bisexual (54 per cent),[35] lesbian (60 per cent),[36] and non-binary (67 per cent)[37]
• there was also a higher incidence of sexual harassment experienced in the workplace among respondents who identified as Aboriginal or Torres Strait Islander peoples (56 per cent)[38]
• 48 per cent of people who identified as having a disability reported sexual harassment in the workplace.[39]
  17. The Time for Respect Survey also found that workplace sexual harassment varies across industries and was notably higher than the national incidence rate of 33 per cent in the following industries: information, media and telecommunications (64 per cent); arts and recreation services (44 per cent); electricity, gas, water and waste services (40 per cent); retail trade (40 per cent); and accommodation and food services (34 per cent).[40]
  18. Underreporting of sexual harassment in the workplace was a substantial problem in the last five years. The number of people who reported being sexually harassed and who made a formal complaint was very low across all industries (only 18 per cent).[41] The industries in which people were least likely to make a formal report or complaint included wholesale trade (1 per cent); administrative and support services (2 per cent); rental, hiring and real estate services (2 per cent); and mining (2 per cent).[42]
  19. While people who experience sexual harassment in the workplace are unlikely to report it, the Time for Respect survey found that organisations are equally unlikely to take any action when a report is made. The second most common consequence for the perpetrator (24 per cent of responses) was no consequence at all.[43] Further, in 40 per cent of cases organisations made no changes to the way sexual harassment was dealt with in the workplace in response to a report or complaint about sexual harassment.[44]
  20. Professor Cooney pointed out that the available statistics are ‘not just characteristic of Australia but of many jurisdictions around the world.’[45]
  21. The Department of Employment and Workplace Relations (DEWR), referring to statistics including from the Time for Respect survey, contended that:

These numbers demonstrate both the magnitude of a problem and the need for an international agreement to recognise and respond to the right of all people to have workplaces free from violence and harassment.[46]

2.22While the available statistics are incomplete, the AHRC pointed out that the their surveys of sexual harassment are considered amongst the best in the world, and were getting more detailed and granular over time.[47]

Key provisions of the Convention

2.23The Convention includes the following parts:[48]

• definitions (Part I), including a definition of ‘violence and harassment’ and ‘gender-based violence and harassment’
• scope (Part II), which establishes who the Convention protects and the circumstances in which they are protected
• core principles (Part III), which sets out, among other things, the inclusive, integrated and gender-responsive approach needed to meet the obligations of the Convention
• protection and prevention (Part IV), which sets out an Member’s obligations to adopt laws and measures to protect workers and other persons and prevent violence and harassment in the world of work
• enforcement and remedies (Part V), which sets out an Member’s obligations to monitor, enforce, and provide remedies for violence and harassment in the world of work
• guidance, training and awareness-raising (Part VI), which obliges Members to seek to develop national policies, undertake initiatives, provide guidance, resources, training and other tools to prevent violence and harassment in the world of work.

Preamble

2.24The preamble sets out the Convention’s common purpose, including:

• affirming that ‘all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity’
• recognising that everyone has a right to work free from violence and harassment, including gender-based violence and harassment
• recognising that, to prevent violence and harassment, a work culture based on mutual respect and dignity of the human being is important
• acknowledging that:

… gender-based violence and harassment disproportionately affects women and girls, and recognizing that an inclusive, integrated and gender-responsive approach, which tackles underlying causes and risk factors, including gender stereotypes, multiple and intersecting forms of discrimination, and unequal gender-based power relations, is essential to ending violence and harassment in the world of work …[49]

Definitions

2.25Article 1 of the Convention defines for the first time in an ILO standard a common understanding of what ‘violence and harassment’ and ‘gender-based violence and harassment’ encompasses.[50] Article 1 states:

1) For the purpose of this Convention:

a) the term ‘violence and harassment’ in the world of work refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment;

b) the term ‘gender-based violence and harassment’ means violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment.[51]

2.26According to the NIA, Australia played a significant role in developing the Convention by participating in the International Labour Office’s Meeting of Experts on Violence against Women and Men in the World of Work (Meeting of Experts).[52] The definitions in article 1 of the Convention are the result of the Meeting of Experts identifying that existing international labour standards did not define violence and harassment.The Meeting of Experts concluded that:

There is a need to intensify efforts to deal with the range of manifestations of violence in the world of work. While terminology might vary across countries, the rubric of ‘violence and harassment’ includes a continuum of unacceptable behaviours and practices that are likely to result in physical, psychological or sexual harm or suffering. A particular focus needs to be placed on gender-based violence. Inappropriate use of technology is also acknowledged as a source of concern.[53]

Scope

2.27Part II of the Convention, the scope, establishes who the Convention protects and the circumstances in which they would be protected. Article 2 states:

1) This Convention protects workers and other persons in the world of work, including employees as defined by national law and practice, as well as persons working irrespective of their contractual status, persons in training, including interns and apprentices, workers whose employment has been terminated, volunteers, jobseekers and job applicants, and individuals exercising the authority, duties or responsibilities of an employer.

2) This Convention applies to all sectors, whether private or public, both in the formal and informal economy, and whether in urban or rural areas.[54]

2.28Article 3 describes what the Convention refers to as the ‘world of work:’

This Convention applies to violence and harassment in the world of work occurring in the course of, linked with or arising out of work:

a) in the workplace, including public and private spaces where they are a place of work;

b) in places where the worker is paid, takes a rest break or a meal, or uses sanitary, washing and changing facilities;

c) during work-related trips, travel, training, events or social activities;

d) through work-related communications, including those enabled by information and communication technologies;

e) in employer-provided accommodation; and

f) when commuting to and from work.[55]

2.29Both articles represent a significant expansion over existing definitions of ‘worker’ and ‘workplace.’ The new definitions reflect the evolution of what is considered ‘work,’ such as advances in technology, and changes in how people are employed. The risk of violence and harassment posed by the evolution of work was a particular focus of both the Meeting of Experts and the Jenkins Report.

2.30The Meeting of Experts recognised that certain forms of employment, such as agricultural workers, domestic workers, homeworkers, and those in the informal economy, may not have had access to the assistance and remedies for violence and harassment available to workers employed in traditionally recognised workplaces.[56]

2.31The Jenkins Report discussed the expansion of ‘non-standard’ forms of work, such as temporary work, part-time or on call work, labour hire, independent contracting and work that relies on digital platforms, and what violence and harassment risk these non-standard forms of work pose:

… it may be challenging for a victim of sexual harassment working under these types of arrangements, such as labour hire or gig economy workers, to identify an employer, a workplace or personnel who are responsible for safety or human resources.

… workers on temporary, labour hire, contract, casual or non-ongoing arrangements were reluctant to complain to avoid their contracts not being renewed or being assigned fewer hours of work. This may place workers at higher risk of experiencing sexual harassment.[57]

2.32In addition, the Jenkins Report noted that the people most at risk of violence and harassment; women, migrant workers, and young people, are more prevalent in these ‘non-standard’ forms of work.[58]

2.33The Meeting of Experts’ response to the evolution of work and its associated risks was to replace the concept of ‘workplace’ with ‘world of work,’ to ensure that the Convention was comprehensive in its coverage of the new non-standard forms of work.[59]

2.34Professor Cooney summarised the Meeting of Experts’ characterisation of the ‘world of work:’

… the convention is comprehensive, covers all aspects of the world of work and endeavours to prevent violence and harassment in every possible configuration of a workplace … The convention aims, as I said, to protect workers and other persons in the world of work, and it's not just employees but interns, apprentices, volunteers, jobseekers and business operators.[60]

2.35Particular contractual arrangements or business structures are irrelevant to the Convention’s coverage, which replaces an approach that protected only employees. The Convention also moves the understanding of what constitutes a ‘workplace’ beyond traditional physical spaces, so as to include digital work, work-related facilities and social events, and trips and training events.[61]

Core principles

2.36Part III of the Convention, containing articles 4, 5 and 6, deals with the core principles of the Convention.

2.37The Meeting of Experts found that national and international efforts to address violence and harassment at work targeted only specific and often limited types of violence and harassment. The Meeting of Experts believed this approach was ‘not always adequate’ for dealing with the problem of violence and harassment at work,[62] a problem Ms Heap described as ‘siloed’ policy approaches.[63] The Convention’s core principles are intended to resolve this problem.

2.38Article 4(2) frames the new approach:

Each Member shall adopt, in accordance with national law and circumstances and in consultation with representative employers’ and workers’ organizations, an inclusive, integrated and gender-responsive approach [emphasis added] for the prevention and elimination of violence and harassment in the world of work.[64]

2.39The framing of the new approach in article 4(2) binds the individual elements of the Convention together with the intention of ‘mixing up’ the ‘siloed’ approaches to violence and harassment at work.[65] Ms Heap described this approach to eliminating violence and harassment as the ‘true benefit’ of the Convention.[66]

2.40Article 4(2) of the Convention goes on to set out the specific obligations that would give rise to an inclusive, integrated and gender-responsive approach to violence and harassment in the world of work, including violence and harassment involving third parties:

• enacting laws and policies to prohibit and address violence and harassment
• adopting comprehensive strategies to implement measures preventing violence and harassment
• establishing or strengthening enforcement and monitoring mechanisms
• making certain that victims have access to remedies and support
• providing sanctions
• developing tools, guidance, education, and training in accessible formats
• putting in place the means for inspection and investigation of cases of violence and harassment.[67]
  41. Ms Heap commented on how an inclusive, integrated and gender-responsive approach in article 4(2) is reflected in the Convention:
• The ‘inclusive’ approach incorporates the definition of ‘violence and harassment ‘in article 1 of the Convention, who is covered by the Convention in article 2, and what is included in the ‘world of work’ in article3.[68]
• An ‘integrated’ approach includes the prohibition of violence and harassment in the world of work, a comprehensive prevention strategy, enforcement and monitoring mechanisms including safe and accessible complaints process, sanctions for perpetrators and remedies and support for victims, and tools and policy frameworks for addressing violence and harassment in the world of work as set out in article 4(2).[69]
• A ‘gender-responsive’ approach incorporates the reality that violence and harassment is driven by dynamics such as power relations, gender norms, cultural and social norms, discrimination, and economic inequalities.[70] Ms Heap argued that the specific identification of gender-based violence and harassment means the Convention ‘comprehends violence and harassment as a gendered phenomenon that women and girls disproportionately experience’. The Convention acknowledges that women and girls are impacted by violence and harassment both inside and outside of work.[71]
  42. Article 4(3) of the Convention further emphasises the imperative that the Convention be inclusive by providing that, in implementing article 4(2), Members are required to recognise the roles and functions of governments, employers, workers, and their representative organisations.[72]
  43. Articles 5 and 6 of the Convention require each Member to:
• respect and promote the fundamental principles of freedom of association and the right to collective bargaining, and the elimination of forced labour, child labour and all forms of discrimination[73]
• adopt laws, regulations and policies ensuring the right to equality and non-discrimination in employment, including for women and other workers in vulnerable groups or groups in situations of vulnerability.[74]
  44. Taken as a whole, the core principles of the Convention present violence and harassment as a ‘complex multilayered problem,’ breaking with the historical framing of violence and harassment as an individual issue involving interpersonal conflict. The Convention requires solutions to the problem which ‘contemplate not only the behavioural and the cultural aspects of violence and harassment but also the institutional and the structural.’[75]

Protection and prevention

2.45Part IV, including articles 7, 8 and 9, focusses on protecting workers and other persons and preventing violence and harassment in the world of work. Members are required to:

• adopt laws and regulations to define and prohibit violence and harassment, including gender-based violence and harassment, in the world or work[76]
• take appropriate measures to prevent violence and harassment in the world of work[77]
• adopt laws and regulations requiring employers to take appropriate steps, commensurate with their degree of control, to prevent violence and harassment, including gender-based violence and harassment, in the world of work.[78]
  46. Part IV also includes some specific obligations in relation to workers and other persons in the world of work who are particularly vulnerable to violence and harassment. Article 8(a) requires Members to recognise the important role of public authorities in the case of informal economy workers.[79] In addition, Members shall, in consultation with employers’ and workers’ organisations, identify sectors or occupations and work arrangements ‘in which workers and other persons concerned are more exposed to violence and harassment’ and take measures to ‘effectively protect’ these persons.[80]
  47. Members shall also require employers, so far is reasonably practicable, to adopt a policy on violence and harassment, take violence and harassment risks into account in managing health and safety, identify and take measures to prevent and control risks of violence and harassment, and provide workers and other persons information and training on the risks of violence and harassment and associated prevention measures.[81]

Enforcement and remedies

2.48Part V of the Convention deals with enforcement and remedies. Members are required to take appropriate measures to ensure workers and other persons in the world of work have easy access to appropriate and effective remedies, and safe, fair and effective reporting and dispute resolution mechanisms and procedures in cases of violence and harassment. Article 10(b) lists a number of examples of mechanisms through which such access can be implemented:

• complaint and investigation procedures, as well as, where appropriate, dispute resolution mechanisms at the workplace level
• dispute resolution mechanisms external to the workplace
• courts or tribunals
• protection against victimisation of, or retaliation against, complainants, victims, witnesses, and whistle-blowers
• legal, social, medical and administrative support measures for complainants and victims.[82]
  49. Additionally, Members shall take appropriate measures to:
• protect the privacy of those individuals involved and ensure that privacy and confidentiality are not misused
• provide for sanctions in cases of violence and harassment in the world of work if appropriate
• provide to victims of gender-based violence and harassment in the world of work, effective access to gender-responsive, safe and effective complaint and dispute resolution mechanisms, support, services and remedies
• recognise the effects of domestic violence, and so far as is reasonably practicable, mitigate the impact domestic violence has in the world of work
• ensure workers have a right to leave a work situation when they believe with reasonable justification that the situation at work presents an imminent and serious danger to life, health, or safety due to violence and harassment, without suffering retaliation or other undue consequences
• ensure relevant authorities are empowered to deal with violence and harassment in the world of work, including by requiring action with immediate effect, and ordering work to stop in cases of an imminent danger to life, health or safety.[83]
  50. The Convention also requires each Member to take appropriate measures to monitor and enforce national laws and regulations regarding violence and harassment in the world of work.[84]

Guidance, training and awareness-raising

2.51Article 11 states that each Member must, in consultation with representative organisations, seek to ensure that:

• violence and harassment in the world of work is addressed in relevant national policies, such as those addressing occupational safety and health, equality and non-discrimination, and migration
• employers, workers and authorities are provided in accessible formats, guidance, resources, training or other tools on violence and harassment in the world of work, including on gender-based violence and harassment
• initiatives, including awareness-raising campaigns, are undertaken.[85]

Entry into force

2.52Article 14 states that the Convention would come into force 12 months after the date on which a Member’s ratification is registered.[86] The Australian Government has proposed ratifying the Convention as soon as practicable.[87]

2.53A Member may denounce the Convention in the 12 months which follow the 10-year anniversary of the Convention coming into force. A denunciation shall not take effect until one year after the date on which it is registered. Once this 12-month period has passed, Members are bound for a further 10-year period, upon which the 12-month period for denunciation commences again.[88] The 10-yearly interval for denunciation is a standard period and is included in nearly all ILO conventions and protocols.[89]

Reasons for Australia to take the proposed treaty action

2.54The Australian Government’s rationale for Australia’s ratification of the Convention included a number of strands:

• ratification would implement Recommendation 15 of the Jenkins Report
• ratification would build on a number of domestic law and policy initiatives resulting from accepting the recommendations of the Jenkins Report, including the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, and the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022
• ratification would allow the Australian Government to continue to influence the implementation of the Convention
• ratification would ground Australia’s engagement in the Asia-Pacific in promoting international labour standards.[90]
  55. All submissions received during the inquiry supported ratification of the Convention.[91]

International significance

2.56There was extended discussion during the inquiry on the international significance of Australia ratifying the Convention, particularly noting the leading role Australia took in the development of Convention, including contributions from participants to this inquiry (AHRC, Ms Heap, and Professor Cooney). DEWR pointed out that Australia’s involvement demonstrated its commitment to eradicating violence and harassment in the world of work.[92]

2.57Participants in the inquiry contended that Australia’s ratification of the Convention would be a significant event in the Asia-Pacific region. DEWR noted that:

… within our region, the data is not in our favour, in terms of violence and harassment at work, and we're seeing this through an ILO report which shows that around a third, I think it was, of women and men in our region are experiencing violence and harassment at work. That puts us in a position to showcase our credentials and also support neighbouring countries to do better. I note that Fiji was one of the first two countries to ratify the convention, and we're really proud to say that that was with some Australian support.[93]

2.58To date, the Convention has not been ratified by many Asia-Pacific states. According to Professor Cooney, Fiji is the only state in the region that has ratified the Convention. Professor Cooney advised the Committee that other states are however considering ratification, including Pakistan.[94]

2.59The AHRC informed the Committee that a senior representative of the ILO had expressed to them a clear view of how important a leading country like Australia ratifying the Convention was in convincing other countries to move forward with ratification.[95]

Implementation

Existing legal framework

2.60According to the NIA, Australia’s law, policy and practice at the Commonwealth, state and territory levels is already consistent with Convention’s obligations.[96] The NIA stated that:

Australia gives effect to the obligations contained in the Convention through the national anti-discrimination framework, the Fair Work Act 2009 (Cth), the Work Health and Safety Act 2011 (Cth) (the Work Health and Safety Act) and the Criminal Code Act 1995 (Cth) (the Criminal Code) in addition to state and territory-level anti-discrimination, equal opportunity, industrial relations and family and domestic violence laws, policies and practices.[97]

2.61Australia has also developed a range of guidance, training and awareness raising initiatives to address violence and harassment, which include addressing violence and harassment in the in the workplace. For example, at the federal level, the AHRC provides online training materials, guidance documents and reports on these topics, particularly those relating to gender-based violence and harassment, such as sexual harassment, sex discrimination and family violence.[98]

2.62According to the NIA, the existing measures at the Commonwealth, state and territory level are comprehensive in scope and acknowledge the roles of government, employers and workers, and their respective organisations, in combatting workplace violence and harassment.[99]

Future developments

2.63The evidence presented to the Committee supported the Australian Government’s assertion that Australia is already compliant with the Convention’s obligations. Nevertheless, it was clear from the evidence gathered by the Committee that Australia’s approach to eliminating violence and harassment in the world of work was still evolving, largely driven by the recommendations of the Jenkins Report.

2.64Professor Cooney advised the Committee that Australia:

… has also made very significant recent advances in relation to harassment, including gender-based harassment. Ratifying the treaty would not entail making major legislative reforms, but it would prompt Australia to make sure there are no gaps in protection and would of course provide a constitutional basis for the Commonwealth to address any shortcomings.[100]

2.65DEWR noted that:

There's always more that can be done, and I think that what Australia's law and practice shows is that we're not only wanting to meet the baseline obligations of the convention but also really wanting to strengthen our compliance and ensure that it goes above and beyond.[101]

Addressing complexity and consistency

2.66At the hearing, the Committee discussed with witnesses an issue raised in the Jenkins Report, that is the potential for the complexity and inconsistency in Commonwealth, state and territory laws and policies to constitute a barrier for those affected by violence and harassment.[102]

2.67For example, the Jenkins Report had this to say about the legal framework for sexual harassment:

… laws prohibiting sexual harassment exist at the federal level and at each state and territory level in Australia. At the federal level, sexual harassment is prohibited in the Sex Discrimination Act. States and territories laws also prohibit sexual harassment. These laws operate concurrently. Where an unlawful act of sexual harassment has occurred under federal law and under a state or territory law, a person may choose to pursue action in either jurisdiction, but not both.

There are some variations across definitions, coverage and procedural matters. For example, state and territory anti-discrimination laws contain different definitions of sexual harassment to the Sex Discrimination Act, which adds to the complexity for employers and workers. The state and territory schemes have benefits, including their capacity to provide tailored education and services in response to particular issues in their jurisdictions.

However, these differences in definitions and complaints processes decrease the accessibility of the legislative regime for ordinary Australians.[103]

2.68The Attorney-General's Department (AGD) advised the Committee that Commonwealth, state and territory governments had formed the Respect@Work Council, which would, in part, seek to resolve problems arising from the interplay between the different legal and policy frameworks.[104]

2.69The Respect@Work Council comprises government regulators and policy makers responsible for sexual harassment policies and complaint handling, employer groups, worker representatives, community organisations and other experts.[105]

2.70The Respect@Work Council has a number of responsibilities, the most relevant of which, in terms of the Convention are:

• working to improve consistency, clarity and coordination across the key regulatory frameworks to ensure they effectively prevent and respond to workplace sexual harassment
• overseeing a national survey on the prevalence, nature and reporting of sexual harassment in Australia, improving data collection and information sharing, and developing indicators for measuring and monitoring sexual harassment prevalence, prevention and response.[106]
  71. AGD advised the Committee that, in addition to the Respect@Work Council, ‘[j]urisdictions are actively working on alignment in areas of focus through the Standing Council of Attorneys-General at the moment.’[107]

Positive duty

2.72One of the recent changes to Australia’s anti-discrimination law was to place a positive duty on employers to prevent sexual harassment, sex discrimination and victimisation in the workplace, an approach which already exists in work health and safety law.[108] Professor Cooney noted this approach, which emphasises prevention rather than punishment, could be used more generally in dealing with violence and harassment.[109]

2.73Professor Cooney’s views aligned with those of the AHRC. The Jenkins Report recommended that workplaces needed to understand sexual harassment less as a matter of individual misconduct and more as a systemic risk factor. The Jenkins Report focussed on the potential for comprehensive industry responses as a mechanism for driving this change.[110]

2.74The AHRC did not consider that comprehensive industry responses were well advanced, but did consider that some industries were making a collective effort to understand.[111] The AHRC identified the arts and recreation industry, which developed a new National Cultural Policy which specifically includes a function to address the high rate of harassment in that industry.[112]

Gig economy

2.75Earlier in this chapter, it was discussed how the Meeting of Experts specifically sought to expand the scope of what was considered a ‘worker’ and ‘workplace’ so that the efforts to eliminate violence and harassment would encompass new forms of work, such as in the gig economy.[113]

2.76During the hearing, the Committee discussed progress on dealing with violence and harassment in the gig economy. Two issues emerged during the discussion: the number employed in the gig economy, and the most effective mechanism for dealing with violence and harassment in the gig economy.

2.77Professor Cooney noted that problems addressing violence and harassment in the gig economy was a challenge faced globally.[114]

2.78There are no reliable statistics on the number of workers involved in the gig economy in Australia. Until recently, the ABS counted gig economy workers as part of the much broader independent contractor cohort, which made up about 8.8 per cent of all employees. DEWR estimated that between 2 and 3 per cent of all employees were in the gig economy. Less authoritative sources put the figure at about 250,000 employees. However, on a more positive note, DEWR advised the Committee that the ABS had begun the process of data collection for the gig economy.[115]

2.79According to the Australian Government, protecting workers in the gig economy is likely to become easier if the foreshadowed extension of the Fair Work Act 2009 to cover employee-like workers comes to pass. In the interim, whether the Fair Work Act 2009 covers gig economy workers is likely to come down to a legal question, depending on the facts. DEWR was of the view that the broader coverage offered by work health and safety laws, which don't depend on the existence of an employment relationship, would generally afford protections to gig economy workers.[116]

Committee view

2.80The Convention is a landmark international instrument. The ILO, which includes not just representatives from member states, but also representatives of employers and workers, has reached consensus on an inclusive, integrated and gender-responsive approach to resolving a complex multilayered problem. In the process, it has incorporated an up-to-date understanding of what constitutes the ‘world of work’, developed a comprehensive definition of violence and harassment which includes gender-based violence and harassment, and changed the approach to dealing with violence and harassment in the world of work from a focus on individual instances of misconduct to addressing the systemic drivers.

2.81Evidence gathered by the Committee indicated that Australia is already compliant with the Convention’s obligations, but the evidence also indicated that violence and harassment in the world of work is still an extensive problem, impacting an unacceptable number of lives, particularly women and girls, and vulnerable members of the community.

2.82The Committee’s is of the view that the Convention should be ratified, but that ratification should not be viewed as an end in itself. The measure of the success of the Convention will not be in the passage of laws or the prosecution of offenders. The measure of success will be a community-wide recognition that mutual respect and dignity are a central part of work.

2.83The Committee supports the International Labour Organization Convention concerning the elimination of violence and harassment in the world of work (No. 190) and recommends that binding treaty action be taken.

Footnotes

[1]International Labour Office, Final Report: Meeting of Experts on Violence against Women and Men in the World of Work (3-6 October 2016), 2016, hereafter Meeting of Experts’ Final Report, paragraph 232.

[2]International Labour Organization Convention concerning the elimination of violence and harassment in the world of work (No. 190) (Geneva, 21 June 2019) [2022] ATNIF 21, hereafter Convention, preamble 1; See also: Meeting of Experts’ Final Report, Appendix paragraph 3.

[3]Convention, articles 2-3.

[4]Convention, articles 2-3.

[5]Convention, article 4(2).

[6]Ms Kate Jenkins, Sex Discrimination Commissioner, Australian Human Rights Commission (AHRC), Committee Hansard, Canberra, 27 February 2023, page 13.

[7]AHRC, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, 2020, hereafter Jenkins Report, pages 40-51.

[8]Attorney-General’s Department (AGD), ‘Respect@Work,’ www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/respect-at-work, viewed 1 March 2023.

[9]National Interest Analysis [2022] ATNIA 11 with attachment on consultation, International Labour Organization Convention concerning the elimination of violence and harassment in the world of work (No. 190) (Geneva, 21 June 2019) [2022] ATNIF 21, hereafter NIA, paragraphs 8-11. The legislation identified in the NIA as implementing the recommendations of the Jenkins Report is the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (see Revised Explanatory Memorandum, paragraph 3); Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (see Revised Explanatory Memorandum, paragraph 4) and Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022.

[10]International Labour Office, The Labour Provisions of the Peace Treaties, Geneva, 1920, Introduction.

[11]International Labour Organization (ILO), ‘History of the ILO’, www.ilo.org/global/about-the-ilo/history/lang--en/index.htm, viewed 16 February 2023.

[12]ILO, ‘About the [International Labour Conference]’, www.ilo.org/ilc/AbouttheILC/lang--en/index.htm, viewed 16February 2023.

[13]Ms Sharon Huender, Acting First Assistant Secretary, Employment Conditions Division, Department of Employment and Workplace Relations (DEWR), Committee Hansard, Canberra, 27 February 2023, pages 1-2.

[14]Ms Lisa Heap, Submission 6, page [3].

[15]Meeting of Experts’ Final Report, paragraph 1.

[16]Meeting of Experts’ Final Report, paragraphs 30, 56.

[17]Meeting of Experts’ Final Report, paragraph 232.

[18]Meeting of Experts’ Final Report, paragraph 232.

[19]Meeting of Experts’ Final Report, paragraphs 215-218. The Jenkins Report also noted the definition of employment in Australia had failed to keep pace with the evolving nature of work to include agency work, on-call work, labour hire. independent contracting, and work that was digital platform based. See: Jenkins Report, pages 74-75.

[20]Meeting of Experts’ Final Report, paragraph 232.

[21]NIA, paragraphs 1-2.

[22]ILO, ‘Ratifications of C190 – Violence and Harassment Convention, 2019’, https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT_ID:3999810:NO, viewed 20 February 2023.

[23]Professor Sean Cooney, Submission 4, page 2.

[24]Meeting of Experts’ Final Report, paragraphs 30, 56.

[25]At the global level, the ILO has started collecting statistics by collaborating with the Lloyd’s Register Foundation. The first publication resulting from this collaboration is the Experiences of violence and harassment at work: A global first survey in 2022.

[26]Ms Kate Jenkins, AHRC, Committee Hansard, Canberra, 27 February 2023, pages 13-14.

[27]Jenkins Report, page114.

[28]Note that this survey does not collect statistics on other types of violence and harassment in the workplace.

[29]Australian Bureau of Statistics (ABS), ‘Personal Safety, Australia’, 2017, www.abs.gov.au/statistics/people/ crime-and-justice/personal-safety-australia/latest-release, viewed 24 January 2023.

[30]ABS, ‘Personal Safety, Australia’, 2017, Table 3.1, www.abs.gov.au/statistics/people/crime-and-justice/personal-safety-australia/2016/49060do0001_2016.xls, viewed 24 January 2023.

[31]The Time for Respect survey is the latest of five national surveys to investigate the prevalence, nature and reporting of sexual harassment in Australian workplaces and the community more broadly. Previous surveys were published in 2003, 2008, 2012, and 2018. See: AHRC, Time for respect: Fifth national survey on sexual harassment in Australian workplaces, November 2022, hereafter Time for Respect, page11.

[32]Time for Respect, page48.

[33]Time for Respect, page48.

[34]Time for Respect, page52.

[35]Time for Respect, page52.

[36]Time for Respect, page52.

[37]Time for Respect, page48.

[38]Time for Respect, page53.

[39]Time for Respect, page53.

[40]Time for Respect, page111.

[41]Time for Respect, page130.

[42]Time for Respect, page122.

[43]Time for Respect, page145.

[44]Time for Respect, page147.

[45]Professor Sean Cooney, Committee Hansard, Canberra, 27 February 2023, page 7.

[46]Ms Sharon Huender, DEWR, Committee Hansard, Canberra, 27 February 2023, page 2.

[47]Ms Kate Jenkins, AHRC, Committee Hansard, Canberra, 27 February 2023, page 14.

[48]The Convention also includes parts addressing methods of application and final provisions.

[49]Convention, preamble.

[50]Meeting of Experts’ Final Report, paragraph 232.

[51]Convention, article 1.

[52]NIA, paragraph 10. Meetings of experts are part of the ILO process for drafting conventions.

[53]Meeting of Experts’ Final Report, Appendix paragraph 3.

[54]Convention, articles 2(1)-(2).

[55]Convention, article 3.

[56]Meeting of Experts’ Final Report, paragraph 176.

[57]Jenkins Report, page75.

[58]Jenkins Report, page75.

[59]Meeting of Experts’ Final Report, paragraph 218.

[60]Professor Sean Cooney, Committee Hansard, Canberra, 27 February 2023, page 6.

[61]Professor Sean Cooney, Committee Hansard, Canberra, 27 February 2023, page 6; Ms Lisa Heap, Committee Hansard, Canberra, 27 February 2023, page 10.

[62]Meeting of Experts’ Final Report, paragraphs 173, 178.

[63]Ms Lisa Heap, Committee Hansard, Canberra, 27 February 2023, pages 10-11.

[64]Convention, article 4(2).

[65]Ms Lisa Heap, Submission 6, page [4].

[66]Ms Lisa Heap, Submission 6, page [1].

[67]Convention, article 4(2).

[68]Ms Lisa Heap, Submission 6, page [4].

[69]Ms Lisa Heap, Submission 6, page [4].

[70]Ms Lisa Heap, Submission 6, page [4].

[71]Ms Lisa Heap, Committee Hansard, Canberra, 27 February 2023, page 10.

[72]Convention, article 4(3).

[73]Convention, article 5.

[74]Convention, article 6.

[75]Ms Lisa Heap, Committee Hansard, Canberra, 27 February 2023, page 10.

[76]Convention, article 7. See also: NIA, paragraph 17.

[77]Convention, article 8. See also: NIA, paragraph 18.

[78]Convention, article 9. See also: NIA, paragraph 19.

[79]Convention, article 8(a).

[80]Convention, articles 8(b), (c).

[81]Convention, article 9.

[82]Convention, article 10(b).

[83]Convention, articles 10(c)–(h).

[84]Convention, article 10(a).

[85]Convention, article 11.

[86]Convention, article 14(3).

[87]NIA, paragraph 3.

[88]Convention, article 15.

[89]NIA, paragraph 43.

[90]NIA, paragraphs 8-11.

[91]Australian Capital Territory Government, Submission 1, page [1]; Northern Territory Government, Submission 2, page 1; AHRC, Submission 3, page 2; Professor Sean Cooney, Submission 4, page 2; Australian Council of Trade Unions, Submission 5, pages 5-7; Ms Lisa Heap, Submission 6, page [1].

[92]Ms Sharon Huender, DEWR, Committee Hansard, Canberra, 27 February 2023, page 2.

[93]Ms Jennifer Wettinger, Assistant Secretary, Economics and International Labour Branch, DEWR, Committee Hansard, Canberra, 27 February 2023, pages 3-4; see also Professor Sean Cooney, Committee Hansard, Canberra, 27 February 2023, page 6.

[94]Professor Sean Cooney, Committee Hansard, Canberra, 27 February 2023, page 6.

[95]Ms Kate Jenkins, AHRC, Committee Hansard, Canberra, 27 February 2023, page 13.

[96]NIA, paragraph 23.

[97]NIA, paragraph 24. Professor Cooney also thought that Australia would not need to make any major legislative reforms as part of ratification. See: Professor Sean Cooney, Committee Hansard, Canberra, 27 February 2023, page 6.

[98]NIA, paragraph 25.

[99]NIA, paragraph 26.

[100]Professor Sean Cooney, Committee Hansard, Canberra, 27 February 2023, page 6.

[101]Ms Jennifer Wettinger, DEWR, Committee Hansard, Canberra, 27 February 2023, page 3.

[102]Jenkins Report, page442.

[103]Jenkins Report, page451.

[104]Ms Erin Murray, Director, Respect@Work Taskforce, AGD, Committee Hansard, Canberra, 27 February 2023, page 4.

[105]AGD, ‘Respect@Work Council’, www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/respect-at-work/council, viewed 1 March 2023.

[106]Respect@Work Council, Respect@Work Council – Terms of Reference 2022, pages [2]-[3].

[107]Ms Erin Murray, AGD, Committee Hansard, Canberra, 27 February 2023, page 4.

[108]Ms Erin Murray, AGD, Committee Hansard, Canberra, 27 February 2023, page 2.

[109]Professor Sean Cooney, Committee Hansard, Canberra, 27 February 2023, page 7.

[110]Ms Kate Jenkins, AHRC, Committee Hansard, Canberra, 27 February 2023, page 15.

[111]Ms Kate Jenkins, AHRC, Committee Hansard, Canberra, 27 February 2023, page 15.

[112]Ms Kate Jenkins, AHRC, Committee Hansard, Canberra, 27 February 2023, page 15. Kate Jenkins also discussed efforts being made by universities, the legal sector, mining, construction, and retail.

[113]Meeting of Experts’ Final Report, paragraphs 215-218. See also: Jenkins Report, pages 74-75.

[114]Professor Sean Cooney, Committee Hansard, Canberra, 27 February 2023, page 8.

[115]Ms Sharon Huender, DEWR, Committee Hansard, Canberra, 27 February 2023, page 5.

[116]Mr Adrian Breen, Assistant Secretary, Workplace Relations Legal, DEWR, Committee Hansard, Canberra, 27 February 2023, page 4; Ms Sharon Huender, DEWR, Committee Hansard, Canberra, 27 February 2023, page 5.