The focus on sexual harassment, discrimination and abuse within Commonwealth parliamentary workplaces this year, while welcome, must not distract from harassment occurring in workplaces across Australia.
The Fourth National Survey on Sexual Harassment in Australian Workplaces found 40 per cent of women, and more than one third of all workers, have been sexually harassed at work. This has serious and enduring impacts on workers, including victims, bystanders, and on organisations and broader society. The Women's Legal Centre ACT and JobWatch said that calls to their services seeking advice about sexual harassment have increased markedly in the past two years.
The Respect@Work report shone a light on the scale of the problem. But it also set out a comprehensive, practical and targeted suite of reforms to tackle the problem. Developed after many interviews and consultations with stakeholders, the report presented a holistic plan to address discrimination and structural inequalities to relieve the burden on victims, and to make workplaces safe.
The Morrison Government (the government) received the Respect@Work report in March 2020; so it is disappointing to see that, nearly 18 months later, its legislative response misses the opportunity to implement the recommendations in full. Indeed, it ignores one of the core recommendations to put the onus on employers to maintain a safe workplace, rather than on vulnerable workers and victims to take action against harassers.
This positive duty is critical to the systemic reform envisaged by the report. We heard repeatedly throughout the inquiry, from experts, practitioners and those who have experienced harassment, that the failure to adopt the positive duty undermined the government's response. The National Foundation of Australian Women (NFAW) referred to the selective implementation as a 'neutering process'.
The vague assurances that further work will be done are small comfort to all those who have been waiting for reform, and who took the government at its word when it said it had accepted the Respect@Work recommendations in full.
With the amendments outlined below, the Greens support the Bill as an important first step towards safer workplaces for all. But more must be done, and the Respect@Work report has already told the government what to do.
Amendments to the bill
Substantive equality
The bill proposes to insert an additional objective in section 3 of the Sex Discrimination Act 1984 to 'achieve substantive equality of opportunity between men and women as so far as is practicable'.
Many submitters, including NFAW, the Australian Human Rights Commission (AHRC) and Circle Green Community Legal, were concerned that this does not reflect the intent of the Respect@Work recommendations, which called for an objective of achieving substantive equality between men and women. The Law Council of Australia also recommended deleting the qualification of 'as far as is practicable'.
The Department’s explanation that it is beyond the scope of the Sex Discrimination Act to fix structural inequality misses the point. Objectives do not create positive duties to deliver on aspirational goals, but they require decision makers to consider whether decisions they make under the Act will aid or hinder the achievement of that goal.
Structural gender inequality is not simply about denial of opportunity; it reflects how discrimination, stereotypes and other factors can affect people’s capacity to take up opportunities. A goal of substantive equality recognises that opportunities may need to be offered differently in some circumstances in order to overcome structural barriers and achieve substantive equality.
Recommendation
Amend the new objective 3(e) to be 'achieve substantive gender equality', to better reflect the recommendations of the Respect@Work report.
Sex-based harassment
Many submitters objected to victims of the new offence of sex-based harassment needing to demonstrate that the harassment they endured was 'seriously demeaning', rather than the threshold of 'demeaning' that applies to sex discrimination and sexual harassment.
The Explanatory Memorandum provides that the threshold avoids capturing 'mild forms of inappropriate conduct… that are not of a sufficiently serious nature'. The Northern Territory Government's concerns that victims may be deterred from making complaints were shared by many others:
There has been some discussion in the NT about the burden of proof and the onus on an employee to prove an act is 'sufficiently serious' to warrant action under the proposed legislation. There is some concern that that this may cause additional distress to employees who are already required to establish the facts of the harassment or discrimination.
There is no justification for subjecting victims of sex-based harassment to a higher bar than other victims.
Concerns were also raised that further amendments were required to ensure action could be taken in response to sex-based harassment.
Recommendation
Replace 'seriously demeaning' in section 28AA with 'demeaning' to bring the sex-based harassment offence in line with other offences under the Sex Discrimination Act 1984.
Recommendation
Allow the Fair Work Commission to make 'stop sex-based harassment orders', as well as stop sexual harassment orders.
Recommendation
Clarify that sex-based harassment can amount to a valid reason for dismissal.
Further work to be done
Positive Duties
One of the strongest messages in submissions and evidence to this inquiry was widespread support for recommendations in the Respect@Work report to introduce a positive duty on employers to provide a safe workplace, and prohibit employers from creating an environment in which sexual harassment is condoned, facilitated or overlooked.
The government and several of the industry submitters maintained that this duty already exists under workplace health and safety laws. This ignores the overwhelming evidence of legal experts, unions and practitioners, and the findings of the Respect@Work report, that those laws are simply not working. If they were, workplace sexual harassment would not be as ubiquitous as it is.
Eliminating workplace sexual harassment will take a big cultural shift. A positive duty to create and maintain a safe workplace is the best way to achieve that.
Recommendation
Impose positive duties on employers in order to prevent sexual harassment, sex-based harassment and discrimination.
Addressing systemic issues
The cultural shift needed to eliminate workplace sexual harassment requires a systemic response. Ms Sophie Ismail, Legal and Industrial Officer at the ACTU, explained it well:
Obviously this goes again to this issue of not putting the burden on individuals. Retail is a perfect example of where you might want a systemic investigation to happen. We know beyond a shadow of a doubt that there is a huge problem in this sector and that there are huge barriers to those individual workers making complaints off their own bat. That's a perfect example of where the Sex Discrimination Commissioner could have a look at the systemic problems and the practices, procedures and culture of that workplace and make recommendations to make that a safer sector.
Allowing unions and other bodies to take representative actions on behalf of workers in workplaces where systemic harassment exists and empowering the Australian Human Rights Commission to initiate systemic reviews will help drive the cultural change the Respect@Work report called for.
Recommendation
Extend the Australian Human Rights Commission's powers so they can initiate investigations of workplaces and undertake systemic sectoral reviews.
Recommendation
Provide for representative claims to be made by unions and other organisations on behalf of members who have experienced sexual harassment, sex-based harassment and discrimination.
Costs
A number of submissions identified financial risks as a significant barrier to workers making complaints. The Women's Legal Centre ACT said:
We're disappointed that the bill fails to provide a cost protection provision for complainants. Many women worry that they will not be believed and will be forced to pay the other side's legal fees. In the case of large businesses and government departments, these fees can be so significant that the average person would face financial ruin. It's no surprise many women decide not to take this gamble.
The decision to make a complaint against someone in your workplace will always be difficult. Costs should not be the determining factor in whether workers are prepared to call out bad behaviour and insist on a safe workplace.
Recommendation
Amend the Australian Human Rights Commission Act 1986 to protect workers against prohibitive costs orders.
Gender diversity
A number of submitters noted that strengthening protections against sex discrimination and sex-based harassment provides an opportunity to confirm that these protections extend to gender diverse workers and those with intersex variations of sex characteristics. This is consistent with the broad definitions in the Sex Discrimination Act 1984.
The Greens support elimination of discrimination in all forms, and recommend the opportunity be taken to clarify the scope of protections for gender diverse people in the workplace.
Recommendation
Include 'gender identity' and 'sex characteristics' as protected attributes under the Fair Work Act 2009.
Senator Mehreen FaruqiSenator Larissa Waters
MemberParticipating Member