Forget the GPS: Where will the new Roadmap for Respect lead employers?

What are the proposed changes and what do they mean for employers?

Last Thursday, 8 April 2021, the Federal Government announced its response to the [email protected] Report.  The [email protected] Report was released as a result of the National Inquiry into Sexual Harassment in Australian Workplaces 2020, an inquiry led by Sex Discrimination Commissioner Kate Jenkins.

The Report made 55 recommendations, directed at reducing workplace sexual harassment and creating safer, more respectful and productive Australian workplaces. Amongst these 55 recommendations were proposed amendments to the Fair Work Act 2009 (Cth), Sex Discrimination Act 1984 (Cth), Workplace Gender Equality Act 2012 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).

In its reply, titled “A Roadmap for Respect”, the Government has responded to the report’s 55 recommendations.

What are the key proposed legislative changes?

Of the 15 legislative changes recommended by Kate Jenkins, only 7 have been agreed to in full by the Government.

The recommendations that were agreed to in full, or in part, are as follows:

Fair Work Act 2009 (Cth)
  • It will be clarified that a ‘stop bullying order’ is available in the context of sexual harassment.
  • Section 387 of the Fair Work Act will be amended to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable.
  • The definition of ‘serious misconduct’ in the Fair Work Regulations will be amended to include sexual harassment.
Sex Discrimination Act 1984 (Cth)
  • The Sex Discrimination Act will be amended to ensure greater alignment with model WHS laws and to make the system for addressing sexual harassment in the workplace easier for employers and workers to understand and navigate.
  • Section 105 of the Sex Discrimination Act, which relates to the liability of persons involved in unlawful acts (including employers), will be amended to ensure that it applies to sexual harassment.  It will be clarified that the scope of the Sex Discrimination Act extends to judges and Members of Parliament.
Australian Human Rights Commission Act 1986 (Cth)
  • Models for an inquiry function in circumstances where the matter for inquiry is referred by Government will be considered.
  • The AHRC Act will be amended to make explicit that any conduct that is an offence under section 94 of the Sex Discrimination Act can form the basis of a civil action for unlawful discrimination.
  • The AHRC Act will be amended so that the President’s discretion to terminate a complaint under the Sex Discrimination Act on the grounds of time does not arise until it has been 24 months since the alleged unlawful discrimination took place.
  • The Government will review costs procedures in sexual harassment matters to ensure they are fit for purpose.
Workplace Gender Equality Act 2012 (Cth)
  • The Government will amend the Workplace Gender Equality Act to require public sector organisations to report to the WGEA on gender equality initiatives. The Government will consider additional funding for the WGEA to support these expanded responsibilities as part of the 2021-22 Budget process.

What about the “positive duty” for employers?

The Government did not adopt the Report’s recommendation that a ‘positive duty’ be placed on employers with respect to preventing sexual harassment in the workplace under the Sex Discrimination Act.  Instead, the Government noted that they consider this duty already exists under WHS laws.

The absence of a positive duty for employers at the Federal level does not mean that employers do not hold positive duties under State sexual harassment laws (such as in Victoria under the Equal Opportunity Act 2010) and does not otherwise mean employers don’t have responsibilities to address sexual harassment.

Even in the absence of a positive duty to prevent sexual harassment in the workplace, employers face liability under the Sex Discrimination Act for sexual harassment that occurs unless it is established that the employer took all reasonable steps to prevent the sexual harassment.

To avoid liability, employers have a responsibility to:

  • have an up-to-date sexual harassment policy;
  • regularly train employees in relation to sexual harassment;
  • have in place clear procedures and processes regarding grievance resolution and investigations;
  • properly investigate sexual harassment complaints; and
  • implement an appropriate disciplinary process for substantiated complaints.

Out the door for sexual harassers?

Much has been made of proposed Fair Work Act changes that will provide employers with a more explicit basis to summarily dismiss employees who have engaged in sexual harassment.

Sexual harassment has, however, always constituted a valid reason for employers to terminate employment, and in serious cases is already capable of constituting serious misconduct.  At its highest, the explicit inclusion of sexual harassment in the statutory definition of serious misconduct may embolden employers to consider termination of employment as an appropriate sanction, or else to more confidently summarily dismiss an employee where sexual harassment has occurred.  The amendment will not, however, substantively alter an employer’s existing rights in responding to sexual harassment.

Particularly in the case of employees eligible to access the unfair dismissal system, a procedurally fair process must still be followed before making a decision to terminate employment in cases of sexual harassment – nothing in the recommendation will permit a “shoot first and ask questions later” approach.

Alternative avenues?

Another significant recommendation is that of extending the existing regime of the Fair Work Commission anti-bullying orders to cover sexual harassment.

This will allow employees an avenue to raise complaints about sexual harassment quickly, but also means that employers must be sure to have their internal policies and procedures up-to-date and implemented correctly, as these processes will be examined by the Fair Work Commission during the process.

At the time that the Fair Work Commission anti-bullying regime was first established, initial concerns about a flood of anti-bullying applications proved to be a mere trickle.  This was to some significant degree seen to be a reflection of the absence of powers by the Fair Work Commission to make monetary awards to applicants.

Given the preponderance of forums in which sexual harassment claims may be pressed, questions may be raised as to whether there will be significant uptake of the Fair Work Commission’s powers to make anti-sexual harassment orders by victims who are already reluctant to engage in existing enforcement systems.

So, what should employers be doing?

Having regard to all of the above, some questions might be raised as to how impactful the proposed changes will be.

In our vast experience, the best approach to addressing sexual harassment in the workplace is, of course, prevention.

In addition to setting strong policies and procedures, the implementation of bystander intervention training is increasingly recognised as a very important and effective tool for identifying and addressing emerging behaviours before they evolve into sexual harassment.

Supplemented by early intervention tools, such as the utilisation of a workplace ombud service such as Ombpoint to equip and empower victims of sexual harassment to respond to unwelcome behaviour, bystander intervention training operates to effectively prevent the escalation of inappropriate behaviour in the workplace.

Should you require assistance reviewing, updating or creating a new sexual harassment policy and procedure for your organisation, exploring training opportunities or should you just want to discuss the proposed changes in general, please reach out to us.

Katie Sweatman
Partner
+61 3 9958 9605
[email protected]

Kathleen Weston
Lawyer
+61 2 9169 8415
kathleen.weston[email protected]