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Eliminating sexual harassment: A call for positive duties under the Sex Discrimination Act 1984 (Cth)

Eliminating sexual harassment: A call for positive duties under the Sex Discrimination Act 1984 (Cth)

By Alexandra Gonos

Human Rights Workplace Young Lawyers 

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The Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report (2020) (Report) alarmingly revealed that one in three individuals had experienced sexual harassment in the workplace.1

Sex Discrimination Commissioner Kate Jenkins has made it clear that the current system is no longer fit for purpose,2 recommending a new legal and regulatory model.

In response, the federal government released a roadmap adopting the Report’s 55 recommendations wholly, in part, in principle or otherwise noted.3 Importantly, the government has agreed to:

  • amend the Fair Work Act 2009 (Cth) (FWA) to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal
  • amend the definition of “serious misconduct” in the Fair Work Regulations 2009 (Cth) to include sexual harassment
  • clarify that a “stop bullying order” under the FWA is available in the context of sexual harassment
  • amend section 105 of the Sex Discrimination Act 1984 (Cth) (SDA) to ensure accessorial liability applies to sexual harassment
  • extend the scope of the SDA to judges and members of parliament.

Positive duty on employers

While the government’s roadmap is a step in the right direction, it has failed to adopt Recommendation 17 of the Report to amend the SDA to:

“introduce a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible” (SDA Duty).4

Current framework

At present, the SDA does not require employers to take positive steps to prevent sexual harassment.

Instead, it states that an employer will be vicariously liable for the sexual harassment by an employee or agent where the sexual harassment occurred in connection with the employee’s employment or the agent’s duties.5 An employer will not be liable if it is established that it took all reasonable steps to prevent the employee or agent from engaging in unlawful acts.6

This places a significant burden on individual complainants and only scrutinises the employer’s practices once a complaint has been made.

Government’s perspective

The government’s position is that it needs to assess whether an SDA Duty would create further complexity, uncertainty or duplication in the overarching legal framework,7 noting that the existing work health & safety (WHS) laws already impose duties on employers to ensure employees are not exposed to health and safety risks (including sexual harassment).

Stronger measures required

The SDA Duty will enhance the proactive and preventative measures employers undertake in preventing sexual harassment. Given the pervasiveness of sexual harassment in the workplace and low rates of reporting, it is clear that the current framework is flawed.

By introducing the SDA Duty it will ensure that the system does not solely rely on complainants, ensuring employers are accountable and provide for more holistic approaches to prevent sexual harassment. As the Law Council of Australia describes, the SDA Duty will not create undue regulatory burden but rather strengthen existing responsibilities.8

Finally, allowing the WHS duty to standalone fails to address that the SDA operates from a human rights perspective (focusing on broader social, cultural and workplace factors)9, distinct from the safety risk and hazards protected under the WHS framework.

 

Alexandra Gonos is co-chair of the YL Law Reform Committee and employment lawyer at Employsure Law.

  1. Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, 2020, p69.
  2. Note 1 above p10.
  3. Australian Government, A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces, 2021.
  4. Note 1 above p481.
  5. Sex Discrimination Act 1984 (Cth), s 106(1).
  6. Note 5 above s 106(2).
  7. Note 3 above p12.
  8. Note 1 above p474.
  9. Note 1 above p480.

 


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