As one of his first acts as the new Prime Minister of Australia, Anthony Albanese has committed to implementing all 55 of Sex Discrimination Commissioner Kate Jenkins’ recommendations in the [email protected] Report – the most significant recommendation being the introduction of a positive duty on employers to safeguard their staff from sexual harassment in the workplace.
Recap of the [email protected] Report
The [email protected] Report (Report) was released in March 2020 following a National Inquiry into Sexual Harassment in Australian Workplaces (Inquiry). The Inquiry was led by the Australian Human Rights Commission (AHRC) and was announced against the backdrop of global movements such as #MeToo and several high-profile incidents concerning sexual harassment.
Under its Terms of Reference, the AHRC was tasked with reviewing and reporting on workplace sexual harassment and to make recommendations in relation to, among other matters, its prevalence, nature and reporting in Australian workplaces, drivers and the current legal framework with the ultimate aim of improving how Australian workplaces prevent and respond to sexual harassment.
The Report found that workplace sexual harassment is “prevalent and pervasive” and “occurs in every industry, in every location and at every level, in Australian workplaces”. Further, gender inequality is the key power disparity that drives sexual harassment in the workplace and society and current approaches by employers have not been effective in reducing sexual harassment.
In response to these findings, Commissioner Jenkins made 55 recommendations. These ranged from conducting a nationally representative survey every four years to provide data on sexual harassment, introducing better education and training in schools, universities, other tertiary education institutions and the workplace in respect of sexual harassment to amending Australia’s complex and outdated legal and regulatory framework.
A positive duty
Most significantly, the Report recommended that the Sex Discrimination Act 1984 (Cth) (SDA) be amended to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.
In determining whether a measure is reasonable and proportionate, the SDA should prescribe the factors that must be considered including, but not limited to:
- the size of the person’s business or operations;
- the nature and circumstances of the person’s business or operations;
- the person’s resources;
- the person’s business and operational priorities;
- the practicability and the cost of the measures; and
- all other relevant facts and circumstances.
To support this positive duty, the Report recommended the AHRC be given the function of assessing compliance with the positive duty and for enforcement. This would include the ability to undertake assessments of the extent to which an organisation has complied with the duty, issue compliance notices, enter into agreements or enforceable undertakings and apply to the Court for an order requiring compliance with the duty.
The proposal for a positive duty reflects a clear shift from the previous reactionary, complaint-based approach to sexual harassment or sex discrimination under Australia’s legislative regime. If implemented, employers would be required to look forward and act to prevent sexual harassment and sex discrimination within their organisation by taking positive steps to address sexual harassment and discrimination and, in particular, eliminate or at least mitigate those factors which lead to such behaviours or face potential wide-ranging consequences.
What is the status of the recommendations?
In response to the Report, the previous Liberal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (Amendment Act), supported by the Fair Work Amendment (Respect at Work) Regulations 2021 (Cth), which both commenced in operation on 11 September 2021.
The Amendment Act was intended to strengthen and simplify the legislative frameworks that protect workers from sex discrimination in the workplace. Notwithstanding this, the Amendment Act gave effect to only six of the recommendations of the Report. The key elements of the Amendment Act were unpacked in our previous article, [email protected] Amendment Act.
With continued agitation for more substantive legislative change (including from high-profile figures such as Grace Tame), on 14 February 2022, the former Attorney General Michaelia Cash released a consultation paper and survey seeking feedback on the outstanding recommendations from the Report, which included the proposed introduction of a positive duty on employers. The public consultation process concluded on 18 March 2022 but was not progressed further as it coincided with the recent Federal election.
A key platform of Labor’s election campaign was the implementation of all remaining recommendations of the Report and, in particular, further legislative reforms to impose a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.
Labor has held true to its pre-election promises, with Anthony Albanese announcing just moments after he was sworn in as Prime Minister on 23 May 2022 that one of the key features of Labor’s agenda will be the “full implementation of the [email protected] report recommendations”. The timeframe on this is yet to be announced but Labor has indicated that it will be a priority.
Where to from here?
A further consultation process is likely to be undertaken with key stakeholders to develop the precise terms of the new laws and amendments.
In the meantime, employers should start thinking about the future implementation of the positive duty in respect of their organisation and continue to ensure they are adopting best practice in respect of preventing and addressing sexual harassment and sex discrimination in the workplace. This includes conducting regular training, having clear processes to raise and deal with complaints, ensuring there are appropriate mechanisms to support staff impacted by sexual harassment and appropriate policies and procedures for dealing with power imbalances and other underlying factors which contribute to sex discrimination and harassment.
To support these best practice mechanisms, Boards, directors and senior management should also ensure they are viewing sexual harassment as a governance and safety issue and use their position to influence the prevention of sexual harassment within their organisation.
As Labor moves to implement the [email protected] recommendations, it’s time now to take action from the Board level to the workforce.