There have been recent calls to update our Federal sexual harassment laws. But should we? HRM talks to Fay Calderone, an employment law and industrial relations expert.

One of the most important outcomes of the #metoo and #TimesUp movements is that they have forced us to rethink existing practices, particularly around what conduct is unacceptable in the workplace and beyond.

The most recent demands for change come from sex discrimination commissioner Kate Jenkins, who has recently called for a revision to the 30-year-old federal sexual harassment laws.

According to Jenkins, the increased exposure given to sexual harassment has led to more people coming forward, which the existing system cannot cope with. Shadow attorney-general Mark Dreyfus agrees with Jenkins, saying that as society evolves, our laws should reflect the changing times.

Moving backwards?

Last year, the Turnbull government implemented an initiative to manage complaints to the Australian Human Rights Commission (AHRC). In an effort to expedite the process, the timeframe for lodging a workplace complaint was cut in half, reducing from 12 months to six months.

Any complaint made after a six month period can be vetoed by the AHRC, forcing the complainant to take their case to Federal Court. Attorney-General Christian Porter says of the move, “Even if a complaint is terminated by the AHRC, a range of other options remain available to complainants including a range of workplace and legal avenues, depending on the particular circumstances of the case.”

Porter also confirmed that he will be talking to Jenkins and Minister for Women, Kelly O’Dwyer, to ensure Australia’s sexual harassment laws are appropriate.

Legal problems

Fay Calderone, partner at Dibbs Barker and frequent contributor to HRM, says that while the changes don’t strictly prohibit people making a complaint to the AHRC after a six month period, it does reduce the likelihood that such complaints will be made and matters will proceed where the conduct occurred more than six months ago.

On the other hand, Calderone does think that the sooner the complaint process happens, the more accurate it will be. “Being able to effectively investigate and receive contemporaneous accounts of the incident from witnesses becomes more and more difficult as time passes,” she says.

“Rather than extending the time period, it’s preferable to have a more robust regime in which matters can be addressed earlier, and with serious consequences if there is victimisation of complainants. This more effectively manages the process at the time the conduct is occurring to keep people in the business rather than to have no option but to leave and make a complaint 12 months down the track when they work up the courage to do so. It shouldn’t have to get to that point.”

Calderone says the AHRC could have more power to investigate and enforce once complaints have been made. A robust, early intervention process specifically catered to sexual harassment – akin to those of the Fair Work Ombudsman or Safe Work Australia – would act as a more effective deterrent.

Calderone says serious reform could see sexual harassment with similar protections to safety breaches, bullying and underpayment of wages.

“Safety regulators and the the Fair Work Ombudsman have broad investigative powers and can issue fines for non-compliance. There could be similar processes for sexual harassment if employers cannot demonstrate when a complaint has been made that they have policies and procedures in place that they are actively promulgating, and investigations they are impartially undertaking,” she says.

Calderone also says remedies available in sexual harassment cases provide limited deterrence. “With bullying you can make an application to stop the bullying with civil penalties if orders are breached, with adverse action you can apply for  injunctive relief and again civil penalties apply for breaches including for individuals involved in the contraventions. With sexual harassment, unless these other things are in play, it’s just about financial compensation which up until recent years has been pretty limited at that. The cost of pursuing these claims can be quite high too relative to others such as unfair dismissal.” she says.

“You just go through the court system, there are no penalties. Until recently, the general damages awarded have been inadequate. But we are starting to see that change, damages are increasing.”

Calderone is also of the opinion that simply reacting to sexual harassment claims will never be enough. “If we are going to change the system, we should focus more on prevention, which has in recent months been assisted by the court of public opinion.”