Do employers owe a positive duty to prevent sexual harassment at work?

In 2018, sexual harassment was at the forefront of the public psyche. In response to an industrial landscape rife with sexual harassment, the Respect@Work campaign was launched. After two years of research, in March 2020, the Australian Human Rights Commission (“AHRC”) released the Respect@Work: Sexual Harassment National Inquiry Report (“the Report”) which made 55 recommendations to prevent sexual harassment and to improve responses to complaints. Among these recommendations was the concept of imposing a ‘positive’ duty on employers to prevent sexual harassment in the workplace. The rationale was that this approach will lighten the burden on victims and attempt to overcome circumstances where employees feel they are unable to make complaints or adequately resolve issues, due to fears around job security or being treated differently.

Labour Government Changes

Whilst Victoria, already have this ‘positive’ duty enshrined in legislation, the other States do not. However, this is likely to soon change. Anthony Albanese’s Labour Government has committed to adopting all 55 recommendations set out in the Report, including the imposition of a nation-wide ‘positive’ duty on employers to prevent sexual harassment. Whilst these changes will not be effective until legislation is passed, they are imminent, and employers should act now to ensure their business is ready and compliant when the changes are in force.

What is Different About a Positive Duty?

A positive duty imposes a higher threshold than that currently required for most of Australia, which is a duty to take “reasonable steps” to identify and prevent harm (sexual harassment). While it is unclear exactly what a positive duty will look like with respect to federal legislation that is yet to be brought before parliament, the Victorian model provides guidance in this regard. It requires compliance with six discreet minimum standards.

These standards are as follows:

• Knowledge (familiarity with the Equal Opportunity Act, ensuring leaders and employee know their responsibilities, etc);
• Prevention Plan (implement an effective sexual harassment prevention plan – this involves analysing the current environment and identifying improvements and objectives);
• Organisational Capability (leaders modelling behaviour, training, ensuring consumers know their rights to receive non-discriminatory services, preparing appropriate codes of conduct, etc);
• Risk Management (regular identification and assessment of risk factors, recognising vulnerable staff groups and taking steps to eliminate or control risk factors);
• Reporting and Response (addressing reports consistently and holding perpetrators accountable, victim central responses, consulting with staff about complaints and reporting procedures, supporting staff and victims in order to avoid victimisation); and
• Monitoring and Evaluation (regular review of strategies and evaluation for continuous improvement, updating prevention plans, transparency with stakeholders).

These six minimum standards aim to target both prevention and response. While not yet required of employers outside of Victoria, the minimum standards are likely to be adopted in a similar fashion at a federal level, so ensuring your familiarity with these standards and considering how they might fit into your business is prudent. At a minimum, it may prompt ideas as to how to better prepare your business to prevent sexual harassment at work.

What is Sexual Harassment?

The Fair Work Act 2009 (Cth) (“the Act”) prohibits sexual harassment in the workplace. The Act defines sexual harassment with reference to 28A of the Sex Discrimination Act 1984 (Cth) (“SD Act”). This definition provides that sexual harassment occurs where an individual or group of individuals:

• Makes an unwelcome sexual advance; or
• Makes an unwelcome request for sexual favours; or
• Engages in unwelcome conduct of a sexual nature – which includes making a statement of a sexual nature to a person or in the presence of a person (including written or oral),

in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated, or intimidated.

Unlike bullying, sexual harassment can be a one-off occurrence and does not need to be a series of repeated events (albeit common).

In determining whether a reasonable person would anticipate the possibility of offense, humiliation or intimidation, consideration must be given to the following:

• Sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, national or ethnic origin of the person harassed;
• The relationship between the parties;
• Any disability present; and
• Any other relevant circumstance.

Sexual harassment can take many forms and can be direct or indirect. Some examples include:

• Making unwelcome sexual advances such as trying to kiss or fondle an individual;
• Making unwelcome requests for sex, dates, to commence a relationship, inappropriate touching, or other entreats for sexual favours;
• Exposing oneself in the workplace;
• Displaying pornographic or sexually suggestive posters or magazines;
• Engaging in public discussion of a sexual nature, such as discussing sexual activities with the individual or within earshot of the individual;
• Complimenting an individual in a sexual way, such as about their body;
• Making sexual comments about your own body; or
• Prolonged staring or gazing.

Importantly, it should be noted that sexual harassment is not confined to conduct between employees but can be inflicted upon or perpetrated by independent contractors, volunteers or other workplace participants.

Can A Poster Be Sexual Harassment?

In Yelda v Sydney Water Corporation and Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107, Ms Yelda was employed by Sydney Water Corporation (“Sydney Water”) and agreed to participate in a work health and safety campaign which was outsourced to Vitality Works Australia Pty Ltd (“Vitality Works”). Whilst Ms Yelda was content for her image to be used for the campaign, she was not aware of, nor shown drafts of the poster, which contained the following words beneath her image, “Feel great – lubricate!”.

It was found that the slogan was of a sexual nature and portrayed her as a ‘sex object’ in the workplace. The sexual slogan was found to be unwelcome conduct and Ms Yelda was humiliated. After seeing the poster, Ms Yelda developed a psychological injury and suffered from adjustment disorder, depression, and anxiety. The Administrative and Equal Opportunity Division of the New South Wales Civil and Administrative Tribunal found in Ms Yelda’s favour, that is – that the conduct constituted sexual harassment and as such, each defendant was ordered to pay $100,000 in compensation to her.

Mr Darcy’s Delusions

In a 2020 case, the principal of a law firm was ordered to pay $170,000 in damages to his then paralegal employee whom he persistently sexually harassed until her resignation. The Court dismissed the appeal in Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126, confirming the decision of the trial Judge, in finding that the actions of Mr Hughes were ‘despicable’. As part of a long-winded campaign of harassment, Mr Hughes made multiple advances on Ms Hill, often making threats on her employment if she did not engage in a relationship with him. On one occasion, while on a work trip, he posed on the employee’s bed in nothing but underwear and waited for her to return to her room. He also sent a plethora of emails confessing he was a ‘wild and passionate man’ and that ‘expressing [his] feelings is not harassment’. His delusions about the appropriateness of his behaviour were revealed when he made the ‘actual submission’ (much to the shock of the judge) that his behaviour could be likened to that of Mr Darcy’s pursuit of Elizabeth Bennet of Jane Austin’s Pride and Prejudice.

Sexual Harassment Off the Jobsite

In STU v JKL (QLD) Pty Ltd [2016] QCAT 505 a young woman was provided accommodation as part of her new job with the Respondent. Although in separate rooms, the woman was required to share accommodation with another employee, a man. During the night, the women awoke to find the man naked in her room. He then proceeded to touch her groin area and attempted to remove her underwear. Despite not occurring in the physical workplace, it was found that the conduct of the man occurred during the course of employment and as such, his employer was found to be vicariously liable. The woman was awarded a total of $328,316.10 in compensation. This case serves as a strong reminder to employers to be cognisant of the risk of sexual harassment outside of the physical work site, but which can still occur during the course of employment.

Investigation into Baker’s Delight

As previously mentioned, under the Equal Opportunity Act 2010 (VIC), Victorian employers already have a positive duty to take steps to eliminate sexual harassment, discrimination, and victimisation in so far as possible. In this connection, the Victorian Equal Opportunity and Human Rights Commission (“VEOHRC”) has the power to undertake investigations with respect to compliance.

Recently, the results of such an investigation, specifically with respect to Preventing Sexual Harassment in Retail Franchises (“the Investigation”) have been made available. Relevantly, Baker’s Delight was the subject of the Investigation, largely due to the composition of their workforce being mostly male bakers and female sales assistants, who are usually young, casual employees.

After three years, the Investigation produced a report known as, “Preventing Sexual Harassment in Retail Franchises’, which revealed that Baker’s Delight had not taken positive steps to prevent sexual harassment, including that they failed to hold a central register of complaints, had no sexual harassment plan, and did not provide training to their employees on how to stop sexual harassment.

Baker’s Delight embraced the opportunity to improve and entered into a Compliance Agreement with VEOHRC wherein the following steps have been agreed:

• Develop a sexual harassment prevention plan;
• Develop sexual harassment training for all employees, including training to assist managers to respond to reports of sexual harassment;
• Updating sexual harassment policies and procedures to respond to reports of sexual harassment, including identifying key decision makers with respect to investigations;
• Communicate regularly with employees including surveying employees;
• Undertake improved risk assessment;
• Taking action steps such as:
  1. undertaking referee checks on new employees;
  2. ensuring at least one employee over the age of 18 is present on ‘close’ shifts;
  3. ensuring two employees are present in the workplace where possible;
  4. using security cameras to monitor workplace conduct;
  5. seeking informed consent prior to publishing employee contact details to other team members; and
• The development of a central register of complaints in respect of sexual harassment.

The Investigation was not triggered by reports of sexual harassment. Instead, it was part of a wider proactive approach to prevent sexual harassment in the workplace. To that end, similar investigations may become commonplace in the event that Labour’s proposed federalised changes come into force.

In our view, businesses could do worse than to prepare now, so that when change comes, they are already in a strong position.

Complaints and Investigation Process

If not already in existence by way of a grievance policy or other mechanism, employers should provide for a clear avenue for employees to report sexual harassment. Once a report is received, an investigation may then be undertaken.

However, in light of the impending changes to positive duty obligations, we recommend implementing a specific policy addressing the prevention of workplace sexual harassment which details the procedure for reporting events and responding to reports, including any possible disciplinary outcomes.

Risks to the Business

Aside from the obvious harm to the individual, which should be avoided at all costs, sexual harassment in the workplace has serious consequences both practically and legally for employers. In addition to the legal ramifications, an environment that allows sexual harassment will likely lead to absenteeism, reduced employee performance, low morale and a poor workplace environment.

The SD Act currently provides that an employer will be vicariously liable, where an employee engages in an act of sexual harassment in the workplace unless the employer can show it took all reasonable steps to prevent the harassment from occurring. Aside from the impending imposition of a positive duty to prevent sexual harassment, actively taking steps to prevent sexual harassment is an act in protecting the business, including from vicarious liability for acts committed by workplace participants.

Under Work Health and Safety laws, employers have a separate duty to provide a safe place of work by taking steps to identify risk and eliminate harm. Sexual harassment can cause physical and psychological harm to workplace participants, so steps need to be actively taken to identify and reduce the risk of harm.  This very much mirrors the requirement in Victoria where there is a positive duty on employers to prevent sexual harassment

Action Steps to Prepare Your Business and Mitigate Legal Risk

• Implement or update your sexual harassment prevention policy;
• Seek feedback and consult with employees regarding any existing issues and how they can be addressed. Provide the opportunity to contribute to consultation anonymously;
• Review onboarding procedures to ensure that new employees receive appropriate training and have access to policies at all times;
• Deliver training to employees regarding their role in preventing and responding to sexual harassment in the workplace;
• Providing clear guidelines as to how to report instances of sexual harassment and directions on how to hand and respond to such reports;
• Ensure that the policy is available in relevant languages depending on the composition of workers from a non-English speaking background;
• Display anti-harassment posters in public areas within the workplace to create a culture of intolerance towards sexual harassment;
• Develop a centralised register of reports of sexual harassment;
• Target line managers in delivering specialised training around behaviour modelling; and
• Review the physical and digital workplace environment. Remove any inappropriate, offensive or explicit material from the office, such as posters, or inappropriate calendars.

We regularly advise our clients as to how to meet their obligations under human rights legislation, including with respect to preventing and responding to sexual harassment in the workplace.

If you require any assistance or information in relation to this client alert, please do not hesitate to contact us.

This alert is not intended to constitute and should not be treated as legal advice.