Three things employers must know when the government revamps sexual harassment at work rules

Prime Minister Anthony Albanese has promised to implement all 55 recommendations of a landmark report into sexual misconduct at work. So what will this mean for Australian employers?

During the global momentum of the #MeToo movement in 2018, Australia’s sex discrimination commissioner Kate Jenkins was tasked with the National Inquiry into Sexual Harassment in Australian Workplaces, and she delivered her subsequent report, Respect@Work, with “a sense of urgency and hope”.

“I call on all employers to join me in creating safe, gender-equal and inclusive workplaces, no matter their industry or size. This will require transparency, accountability and leadership. It will also require a shift from the current reactive model, which requires complaints from individuals, to a proactive model, which will require positive actions from employers,” Jenkins said.

“Ultimately, a safe and harassment-free workplace is also a productive workplace.”

Hall and Wilcox partner Fay Calderone says there are three recommendations that employers should take note of: positive duties, representative claims, and damages/costs.

As the law stands, Calderone says, the legislation in the Sex Discrimination Act is largely remedial in nature, rather than proactive, meaning “employer practices were only externally scrutinised after an allegation of sexual harassment had been made”.

“Often in cases I have been involved in, only after an employee has made a decision to leave, particularly where the allegations involve superiors that are perceived as protected by the organisation.”

But the implementation of positive duties would see the onus switch onto the employer to take “reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible”.

Who decides whether a workplace has done this? The Australian Human Rights Commission, and the independent regulator can even apply to the court for an order requiring compliance with the duty.

The commission’s power to investigate such complaints “significantly increases the stakes for employers”, Calderone says.

“Employers can expect a robust, early intervention process specifically catered to sexual harassment akin to those of the Fair Work Ombudsman or work health and safety regulators which would act as a more effective deterrent to sexual harassment than seeking damages for breach of the Sex Discrimination Act,” she continues.

Another recommendation worth noting allows the unions and other representative groups to bring claims to court, meaning we could see “considerably more agitation of sexual harassment matters in court in highly unionised industries”, Calderone says, like education and healthcare.

In addition, the Respect@Work report recommends we modernise damages — to make sure victims are properly compensated for the harms caused — and that we introduce a cost protection provision.

What would this do? It would see costs only awarded in cases where they were unreasonably incurred. Basically, as it stands a complainant can lose a sexual harassment case and then be ordered to pay the other party’s hefty costs on the way out.

“[It] has been a significant deterrent for victims of sexual harassment to pursue claims under the Sex Discrimination Act for fear of being lumped with a costs order to pay the employers costs (in addition to their own) if they are unsuccessful,” Calderone said.

But overall, Calderone says, workplaces that are already proactive about protecting their staff and taking complaints seriously need not worry too much about the implementation of the 55 recommendations.

“Many employers should already be taking to prevent sexual harassment in the workplace given their obligations under work health and safety legislation and the defences they have to establish to defend claims under the Sex Discrimination Act if made,” she said.

“However, the changes will certainly up the ante where there are complaints in the way they are investigated, can be pursued by a regulator and/or the unions and in the hefty costs they will need to foot if the matters are pursued in court … even if they successfully defend them.”