The legislative landscape surrounding workplace sexual harassment and violence in Australia has undergone a profound change recently.
The change is reflected in two principal areas:
- The first area concerns who bears the primary legal responsibility for addressing sexual harassment and what processes should be implemented and followed to combat it;
- The second area concerns classifying the risks constituted by workplace sexual harassment and assessing the nature of the potential harm.
As regards the first area, the new legislative regime is based on the premise that the duty to attempt to eliminate sexual harassment falls squarely on the employer who must take proactive steps to attempt to eliminate or reduce, in a systematic fashion, the likelihood of such occurrences. Moreover, statutory bodies are now given oversight and investigative powers where they think that the law is being infringed.
This is, of course, a radical overturning of the previous paradigm where the victim bore the responsibility of making a complaint about a specific instance.
In brief, the Acts which have undergone amendment to bring about these changes are:
- The Sex Discrimination Act now imposes a positive duty on employers to take ‘reasonable and proportionate’ measures to eliminate sexual harassment and sexual discrimination in their workplaces,
- The Australian human Rights Commission Act which now gives the AHRC powers to enforce the positive duty,
- The Fair Work Act now gives the Fair Work Commissioner the ability to make ‘stop sexual harassment ‘orders in the same way as the earlier right to make ’stop bullying ‘orders, and the Commission now has the right to make orders for lost wages. The Fair Work Act finally makes it clear that sexual harassment is a ground for dismissal.
The second area concerns the mental health of those who are victims of sexual harassment or violence in the workplace.
Under the guidance of WorkSafe Australia, a Federal agency, all states and territories, except Victoria have harmonised their WHS legislation. In July 2022, WorkSafe Australia published a comprehensive code of practice for managing psychosocial hazards at work and all these States and territories have adopted the Code by regulation under the legislation. The overarching principle in the Code is that any PCBU (person conducting a business or undertaking) must ensure, so far as is practically possible that workers and other persons are not exposed to psychosocial risks. What this means is that it is now clear that the duty of employers to protect against psychosocial risks is equivalent to the duty in relation to physical risks.
Following the recommendations of the Respect@Work Commission it is now understood in the WHS environment that sexual harassment is a pernicious scourge which has the potential to affect the mental well-being of victims in the long term and sometimes permanently. It is a health issue- not merely a grievance issue.
The legal reforms are overarching and extensive and go further than any other reforms in other countries. Australia is poised to take the lead in combatting workplace harassment, provided employers accept the challenge in good faith and with due diligence.
How this can be done will be discussed in our next article in the series.