The Government’s response to the Sex Discrimination Commissioner’s report on sexual harassment in the workplace

We have written previous articles regarding the #metoo movement and sexual harassment and what this means in the context of employment law. Community expectations are rapidly changing in this area especially as the issues of sexual harassment and sex discrimination have come to the fore in recent times as a result of the increased media attention following allegations being aired about sexual assault and inappropriate conduct in our Federal Parliament.  Sex discrimination issues continue to garner political and media attention, with the lens of sex discrimination being applied to the treatment of Australia Post’s former CEO, Christine Holgate by the Federal Government.

In June 2018, Prime Minister, Scott Morrison, asked the Sex Discrimination Commission to chair an inquiry and commissioned a report into sexual harassment in the workplace.  In January 2020, the Sex Discrimination Commissioner provider the Government her report, titled Respect@Work.  In response to current community expectations, the Prime Minister, Scott Morrison recently announced the government would agree wholly, in part or in principle to the 55 recommendations in the Sex Discrimination Commissioner’s report on sexual harassment in the workplace. In doing so, the Prime Minister used very strong words, saying about sexual harassment that, “it is not only immoral and despicable and even criminal, but it also denies Australians, especially women, their personal security and their economic security by not being safe at work.”

While the Federal Government’s response was a substantive response, closer inspection by civil society has resulted in the Australian Council of Trade Unions forming a coalition with other organisations to call on the Federal Government to wholly agree to all of the 55 recommendations.  Continued public pressure around these issues will keep them at the forefront of the community’s minds and employers and employees will be more alert to misconduct which may not have been noticed in the past. Large corporations are also taking note of the current climate and are introducing their own protections in this regard.

Key aspects of the Government’s response to the Respect@Work report

The Federal Government has agreed to amend section 387 of the Fair Work Act 2009, to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in the Unfair Dismissal jurisdiction.  Dovetailing with this amendment, the Federal Government has also agreed to amend the definition of serious misconduct in the Fair Work Regulations 2009 (Cth) to include sexual harassment, which would have the effect of making such conduct capable of giving rise to a proper basis for summary dismissal.

In addition, the Federal Government has undertaken to develop targeted amendments to the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) to ensure that it reflects modern expectations and has appropriate coverage.  The reforms will amend section 105 of the Sex Discrimination Act to ensure it applies to sexual harassment.  The Federal Government is also going to work with the States and Territories to remove the exemption for State Public Servants.

The Government has also indicated that the Fair Work Commission’s Anti-bullying jurisdiction and ability to make “Stop Bullying Orders” should be clarified to ensure they are available in the context of sexual harassment.  Presently, particular instances of sexual harassment which fall within the definition of bullying that create a risk to health and safety, would enliven the powers available under the Anti-bullying jurisdiction.

The Federal Government has informed the public that the changes to the legislation would be ready for discussion by next month (May 2021).

It is also relevant to note that duties currently exist under Work Health and Safety legislation for employers to take reasonable steps to prevent risk of sexual harassment. In response to a recommendation that specific guidelines on sexual harassment be developed (with a view to informing the development of a Code of Practice on sexual harassment), the Federal Government noted that Safe Work Australia is currently developing a code of practice on managing psychosocial risks, which is to cover sexual harassment in the workplace.

Position for Employers

Given the substantive response by the Morrison Government to the Respect@Work report tabled by Ms Jenkins, the Sex Discrimination Commissioner, it is abundantly clear that there is a strong community expectation that sexual harassment and the appropriate treatment of women at work is taken seriously by all employers.

Employees are now far more informed of their rights and will be far more likely to report sexual harassment, sex discrimination and other inappropriate conduct. Employers need to ensure they are able to deal with such matters in a robust and supportive environment and have taken all reasonable steps to ensure such conduct does not occur. To this end, employees who are experiencing sexual harassment or are treated differently because of their sex have a range of legal avenues available to them depending on the circumstances.  Those potential legal avenues include sex discrimination claims, and general protections discrimination claims.  They may also be able to seek stop bullying orders from the FWC, or commence common law proceedings for both breach of contract and negligence. Further, such matters may also be a breach of Work Health and safety Laws and employers may be subject to prosecution by the relevant State or Territory work health and safety authority.

The costs involved in dealing with claims of sexual harassment, sex discrimination and similar claims can be very material. The Courts are taking a far more robust view of damages awards and the costs of litigation can be significant. Far more important however is the damage to corporate reputation that inevitably results from a claim of this nature.

In light of the current climate in the community around sexual harassment and gender based discriminatory conduct, we recommend that employers ensure that employees are appropriately trained and that there are comprehensive workplace policies implemented which minimise the risk of sexual harassment occurring in your workplace and entrench a safe and respectful workplace culture.

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

We regularly advise clients on all matters touching upon the employment relationship. Please contact us should you require any such advice or assistance.