26 Mar 2024Recently there has been a lot of publicity about new Commonwealth laws, taking effect toward the end of 2023, aimed at preventing and addressing sexual harassment in Australian workplaces.
Recurring themes in this publicity are the stimulus for these laws, the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report (2020); and the phrase “positive duty”.
These new laws, which for brevity will be called the “Respect@Work laws”, are commonly described as requiring employers to take “positive steps” to eliminate sexual harassment, and to ensure that workplaces are not “hostile”. But what do these terms actually mean in practice?
To understand this most recent development in the way in which the law attempts to deal with harmful and anti-social behaviour in society, it helps to look back, quite a long way, at the history of legislative attempts to eliminate this kind of behaviour.
Laws prohibiting harmful behaviour
Over the totality of Australian history, there have been Crimes Acts of various kinds. These Acts prohibit criminal conduct harmful to others, in society generally; and make provision for the punishment of offenders.
However that’s all they do, and all they ever did. The only attempts to deter criminal activity before it took place, rather than punish it after the event, were the continued introduction of increasingly harsh penalties which was, as everyone now knows, almost completely ineffective, having filled British prisons to overflowing, and necessitated the transportation of prisoners to the new colony.
So notorious was the uselessness of harsh penalties as deterrents, that the phrase “as well hung for a sheep as a lamb” entered the language, and remains in occasional use today.
Dealing with harmful behaviour in the workplace – the beginning
Fast-forward 150 years or so, and focusing on workplaces, workers compensation laws started to appear. These were obviously a good thing; but they were not workplace safety laws as we now know them: they were simply laws providing compensation for employees hurt at work.
Indeed, up until around this time the law recognised the concept of “common employment” which, very roughly translated, meant that the more obviously dangerous the workplace was, the less injured workers could expect compensation for being hurt.
After the introduction of workers compensation laws in the first half of the twentieth century, however, workplace safety legislation started to emerge, but initially it bore little resemblance to modern counterparts.
However during the 1980s new legislation (then using the term “occupational health and safety” rather than “work health and safety”) broke new ground in New South Wales by requiring employers to take some active measures to avoid and prevent injury to employees.
One such measure required the establishment of workplace safety committees including employee representatives.
True it was that these amendments were a kind of trade-off for concurrent reduction in workers compensation benefits to ease pressure on a financially crippled insurance scheme but, for all that, they represented positive steps of a sort. (Five years earlier, the NSW Anti-Discrimination Act had introduced “affirmative action” to redress the effects of workplace sex discrimination; but these measures were confined to the public sector, and dealt with things such as promotion policies weighted against women, rather than sexual harassment.)
Work health and safety (WHS) legislation in NSW
It’s useful to understand current NSW legislation (Work Health and Safety Act 2011), and the obligation it establishes in order to protect the health and safety of workers.
This obligation is to “eliminate”, “as far as is reasonably practicable” the workplace risks to health and safety. If it is not reasonably practicable to eliminate a risk, the obligation is to “minimise” it as far as is reasonably practicable.
The obligation is imposed on the “person conducting a business or undertaking” or “PCBU”, in order to avoid arguments about whether or not a worker is someone’s employee. “PCBU” is a term used in the Respect@Work laws.
The protections extend to everyone who is lawfully present in the workplace. This notion, again, is reflected in the Respect@Work laws – for example, a workplace which is “hostile” in a sexual harassment sense because pornographic material is on open display may present a risk to someone who simply happens to be legitimately on the premises, such as a delivery driver.
So the requirements under the Respect@Work laws are not really all that novel. But in a number of respects they are distinctly different from those under general WH&S legislation, so it’s important that employers clearly understand their obligations under the Respect@Work laws.
Prevalence of sexual harassment in the workplace
The Respect@Work laws about preventing and addressing sexual harassment in the workplace followed the recommendations of the Sex Discrimination Commissioner’s Respect@Work report, which was based on the findings of the National Inquiry into Sexual Harassment in Australian Workplaces. (See Government takes steps to eliminate sexual harassment in Australian workplaces, Attorney-General’s Department, 27 September 2022.)
That inquiry found that one in three people in the workforce had experienced workplace sexual harassment in the preceding five years.
Who is more likely to be sexually harassed?
Thirty-nine per cent of women and 26 per cent of men reported being victims of sexual harassment at work. (Please see the AHRC’s report.)
Reports were particularly high among young workers, LGBTI workers, Aboriginal and Torres Strait Islanders, workers with a disability and those with culturally and linguistically diverse backgrounds.
Laws protecting workers from workplace sexual harassment
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 strengthened and clarified the legal and regulatory frameworks relating to sexual harassment and increased the focus on prevention.
This Act itself isn’t easy to understand, because it is a collection of amendments to a number of different Acts, which have to be read in order to understand what has actually changed.
Every employer (a term which includes a person conducting a business or undertaking; a PCBU) needs to be aware of the consequences of failing to act against sexual harassment in the workplace.
Focus on hostile workplaces, not identification of “victims”
The Act places a duty on employers to take positive steps to eliminate the possibility of sexual harassment, including a workplace that is sexually charged or hostile, even if specific conduct is not directed at a particular person.
This last notion is important: it moves the focus away from the need to identify some particular target or “victim” and requires employers to take a more holistic view of factors which could add up to a hostile workplace.
These factors could include the display of sexual material on notice boards or lockers, general sexual banter or innuendo and offensive jokes.
It’s an understandable misconception that the new rules have little application outside of traditionally masculine, blue-collar, workplaces, such as construction sites, factories, and primary industry worksites.
Many professions, callings and businesses – publishing, art dealing, entertainment, medicine, even law – need to deal with material which may, if openly visible not merely to clients or customers, but also to people who enter the premises casually for business reasons such as making deliveries, may cause offence. So it’s necessary in any workplace to think carefully about this aspect.
New legislation focuses on preventing sexual harassment
The Respect@Work laws shift the focus from responding to conduct that has already occurred, to the taking of positive steps to prevent workplace sexual harassment.
Employers now have a “positive duty” to take “reasonable and proportionate measures” to eliminate unlawful sex discrimination and sexual harassment as far as possible. This includes providing appropriate support to workers, as well as training and education. (Please see Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 Explanatory Memorandum.)
Contrasting these standards with the WHS legislation test of “reasonably practicable” action to eliminate or minimise risks to health and safety, there is, on the face of it, not a great deal of difference.
Without doubt the courts will, in due course, test what employers have or have not done in specific cases. As with all new legislation, precise meanings may take some years to emerge.
But the obligation is clear: an employer who does no more than to publish a policy forbidding sexual harassment will not have discharged this “positive duty”.
What might taking “reasonable and proportionate measures” involve?
Taking all “reasonable and proportionate measures” might include consultation on a personal level with workers in groups or as individuals; surveying the way staff feel about the workplace; making clear that non-compliance with policies will attract sanctions; and training and development programs designed to increase awareness. In some cases, the taking of expert legal advice may be prudent.
It also seems clear that what is required to discharge this duty will depend on the size and nature of the business or organisation: what may be reasonable for a large business may not be for a business with a handful of employees.
The Respect@Work laws give the Australian Human Rights Commission power to monitor and assess compliance with these duties. The Commission can also conduct inquiries; issue compliance notices specifying the action which must be taken; publish those compliance notices; and apply to Federal courts for orders to enforce compliance.
Employers ignore Respect@Work laws at their peril
In one way, the Respect@Work laws are not radical or revolutionary but, instead, the next step in a journey which started many years ago. At the same time, they do represent a significant further measure to ensure safe workplaces, and a measure which employers cannot ignore without the potential for serious consequences.
