The Commonwealth Government has announced its response to the Australian Human Rights Commission’s recommendations in the [email protected]: Sexual Harassment National Inquiry Report by the Sex Discrimination Commissioner.
As well as preventative education and training, the Report recommended that the right of workers to be free from sexual harassment is a human right, a workplace right, and a safety right, which should be legally recognised through a positive duty on employers to eliminate it.
The Government has noted this recommendation and agreed in principle to other legislative changes.
Some of the key recommendations and responses are as follows:
Recommendation 16: Amend the Sex Discrimination Act to ensure:
a) the objects include ‘to achieve substantive equality between women and men’
b) sex-based harassment is expressly prohibited
c) creating or facilitating an intimidating, hostile, humiliating, or offensive environment on the basis of sex is expressly prohibited
d) the definition of ‘workplace participant’ and ‘workplace’ covers all persons in the world of work, including paid and unpaid workers, and those who are self-employed
e) the current exemption of state public servants is removed.
Response: Agreed-in-Principle: The Government supports equality of opportunity and the express prohibition of sex-based harassment. Further, the Government will amend the Sex Discrimination Act 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.
Recommendation 17: Amend the Sex Discrimination Act 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 Act should prescribe the factors that must be considered including, but not limited to:
a) the size of the person’s business or operations
b) the nature and circumstances of the person’s business or operations
c) the person’s resources
d) the person’s business and operational priorities
e) the practicability and the cost of the measures
f) all other relevant facts and circumstances.
Response: Noted… the Government will assess whether such amendments would create further complexity, uncertainty or duplication in the overarching legal framework.
Recommendation 28: The Fair Work system be reviewed to ensure and clarify that sexual harassment, using the definition in the Sex Discrimination Act, is expressly prohibited.
Response: Agreed-in-Principle: The Government will review the Fair Work system once the amendments proposed under Recommendation 16 have been implemented and their impact assessed.
Recommendation 29: Introduce a ‘stop sexual harassment order’ equivalent to the ‘stop bullying order’ into the Fair Work Act. This should be designed to facilitate the order’s restorative aim.
Response: Agreed-in-Principle: The Government will clarify that a ‘stop bullying order’ is available in the context of sexual harassment.
Recommendation 30: Amend Section 387 of the Fair Work Act 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 timetable for implementation has not been announced.
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Author: David Jacobson
Principal, Bright Corporate Law
About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.