We've hit the road for Respect @ Work reform but roadmap not clear yet

Off to a good start

Australia was once at the forefront of tackling sexual harassment, with most States enacting anti-discrimination and sexual harassment laws in the 1970s and 80s and the introduction of the Federal Sex Discrimination Act in 1984.

Sexual harassment means any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature in circumstances where a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated.

Structural, systemic & cultural failures revealed

Decades later, in 2018, the Australian Human Rights Commission’s national survey found two in five women (39%) and one in four men (26%) experienced sexual harassment at work over the past five years.

In January 2020, following its 18 month National Inquiry into Sexual Harassment, the Australian Human Rights Commission published the Respect@Work Report.

The recommendations in the Report seek to achieve cultural change through our education systems and communities; to restore the balance of power by improving measures to protect victims; to drive accountability of individuals and increase deterrence; and to embolden employers to take the power back from sexual harassers by allowing summary termination for serious misconduct.

Respect @ Work finally at the top of the reform agenda today

Fifteen months after receiving the Respect@Work Report, and under pressure to respond to widespread incidents of sexual harassment and inappropriate behaviour within parliament and government, the Federal Government has provided its response, ‘The Roadmap for Respect’, and agreed to implement all 55 recommendations in Respect@Work Report, ‘wholly, in part, or in principle’.

Attorney-General Michaelia Cash has announced the government will ‘develop and implement a suite of legislative and regulatory reforms, [aiming] to reduce complexity but also strengthen the national framework for addressing sexual harassment.’

The government has confirmed it will table the complete Roadmap for Respect at National Cabinet tomorrow to detail the governments specific response to the 55 recommendations as only limited information has been released today.

We have hit the road but roadmap for Respect @ Work not clear yet

The detail is yet to emerge about which of the recommendations will be wholly accepted or partly accepted, and what ‘accepted in principle’ actually looks like.

The government is aiming to implement legislative changes this year after a consultation process, and will announce specific measures in next month’s Federal budget. The Federal government also announced that it will be working with States and Territories, and the National Cabinet, on a national response to the Report.

That said, today, the government agreed to:

a.    Accept Rec 22 - Extend the timeframe for bringing sexual harassment complaints to the Australian Human Rights Commission from 6 months to 2 years, recognising that victims of harassment may need more time to decide to bring their complaint;

b.    Accept Rec 30 and 31 - Amend the definition of serious misconduct in the Fair Work regulations to include sexual harassment, and clarify that sexual harassment can be a ground, or a valid reason for dismissal. This will give employers more power to take action against perpetrators of sexual harassment.

c.    Extend the scope of the Sex Discrimination Act so that complaints may be made against judges and Federal MPs, which fixes an existing loophole. That said, it’s still unclear what consequences MPs will face if they are found to have sexually harassed someone, as they cannot simply be ‘fired’ like a regular employee. The Attorney-General claimed ‘The people themselves would speak’ however as elected officials they cannot simply be removed. Consequences would need to be administered by the party in practice.

d.    Agree in principle with Rec 29 - Empower the Fair Work Commission to issue ‘stop sexual harassment orders’, however instead amend the existing ‘stop bullying order’ regime. This empowers employees to take action, and forces employers to respond, if sexual harassment is happening at work.

e.    Agree in principle with Rec 17 and 18 - Introduce the concept of a positive duty to eliminate sexual harassment, however at this stage only ‘looking at how to implement the positive duty in the Sex Discrimination Act’. Similar to the positive duty on employers to provide a safe workplace under work health and safety laws.

The Prime Minister expects the reforms to be introduced before the Budget sittings in June 2021.

Employers and sexual harassers on notice

It is positive to see the Federal Government finally committing to the recommendations in the Respect@Work report but time will tell as to how many recommendations the government does fully implement.

Australian employers are however now on notice that sexual harassment at work will not be tolerated. Leaders and boards should be paying attention to make sure their workplaces are not exposed to potential claims. Most importantly, employees who sexually harass others in the workplace are being sent a clear message: this behaviour is not acceptable and will not be tolerated.

More to come...