This workplace health and safety expert is “less than impressed” with the government’s efforts to tackle workplace sexual harassment in response to the Respect@Work report. Dr Rebecca Michalak argues for a nationwide shift towards adopting a safety and trauma-informed approach.

Trigger warning: This article includes information that may be distressing to some readers. If you or someone you know needs support, you can visit 1800Respect.

Alarming accusations of sexual harassment and assault in parliament house has been at the forefront of national public concern in recent months.

Earlier this year, former Liberal staffer Brittany Higgins spoke publicly about being allegedly raped by a fellow staffer at parliament house in 2019, spurring other women in parliament to air their own alleged instances of sexual harassment and assault.

Those at the helm of various government departments have been the subject of public ire for inadequately handling allegations of sexual harassment and assault that often occurred under their watch, while Prime Minister Scott Morrison was lambasted for his government’s long delay in responding to the Australian Human Rights Commission’s landmark Respect@Work report, which was released in 2020.

Protestors took to the streets when, in March, more than 90,000 people signed the March4Justice petition, calling on the government to implement the 55 recommendations outlined in the Respect@Work report and take a tougher stance in eliminating sexual harassment and assault in the workplace.

Finally, it did – or so we thought.

Last week, the government came out with its response to the Respect@Work report, and accepted some of the recommendations which mean:

• Victims will have more time to come forward, as the maximum timeframe within which victims can make sexual harassment complaints to the AHRC has been extended from six months to 24 months.
• Judges and parliamentarians will be held accountable for sexual harassment complaints, as the Sex Discrimination Act now extends to these professions.
• Employers can immediately dismiss sexual harassers with more ease than before, as it has been clarified that sexual harassment constitutes serious misconduct.

On the face of it, the government’s highly anticipated response seemed like a step in the right direction, but a number of experts have identified significant gaps. HRM speaks with PsychSafe managing director Dr Rebecca Michalak to find out why she is “less than impressed” with the government’s reaction, and what the Respect@Work means for HR practitioners.

Haven’t got time to read the whole article? We’ve summarised some of the key points at the bottom.

“Softer” pathway remains open

Of the primary frameworks that currently exist for dealing with issues of sexual harassment and assault in the workplace – the anti-discrimination pathway, the human resources/industrial relations pathway, and the safety pathway – Michalak says the latter is “by far the most effective avenue that a potential victim could take, and far more likely to lead to primary prevention risk management efforts – rather than passive, ‘clean up the mess’ strategies”.

One of the reasons for this is that the safety legislation stipulates a “positive duty on a PCBU (person conducting business or undertaking) to prevent, insofar as reasonably practicable, hazard exposures from occurring in the first place”.

The Respect@Work report recommended the anti-discrimination legislation, which currently calls for ‘reasonable steps’ to be taken in the prevention of sexual harassment at work, shift towards obligating organisations to take steps as a ‘positive duty’. 

This recommendation, however, only received a response of ‘noted’ by the government.

“They gave a reason for only noting it, and I call bull***t on the reason,” says Michalak.

“The reason they gave was that there’s already a positive duty under the safety legislation, and they don’t want to create confusion for victims. That appears all well and good, but actually flies in the face of the best practice trauma-informed approach which recommends having multiple avenues for redress for victims,” says Michalak.

“It also didn’t stop the government agreeing to add powers to Fair Work (Stop Harassment Orders).”

In addition, the punishments that can be doled out under the safety legislation are significant, and include the capacity to jail officers, sizeable fines and industrial manslaughter. As such, they have much greater scope to act as an effective deterrent.

Under the anti-discrimination legislation, however, “there isn’t the same capacity to actually personally fine and imprison officers for breaching the Act”, says Michalak.

Moreover, if a victim pursues a civil suit as a result of an organisation’s failure to provide a safe working environment, the damages awarded to victims within the safety and related common law framework are essentially uncapped, with recent cases attracting seven figure payouts.

By contrast, under the anti-discrimination legislation, the compensation payable has a limit of $100,000, and Fair Work does not award compensation for Stop Bullying Orders, assumed to be the same for the new Stop Harassment Orders.

“They’re claiming to close a loophole but what they’re actually doing is creating opportunities for business to push victims a certain way – and that’s away from the big stick.” – managing director of PsychSafe, Dr Rebecca Michalak.

Another recommendation outlined by the Respect@Work report was for the AHRC to be granted similar powers to investigate, enforce and call for evidence as a safety regulator, but the government merely ‘noted’ this recommendation too.

The failure to expand the powers of anti-discrimination legislation, coupled with the government’s hesitancy to equip the AHRC with additional powers, runs the risk of bolstering the capacity of businesses to lead victims down the anti-discrimination path.

“If you are putting deterrence on the corporate governance table, safety legislation will do that best. But by keeping [the other avenues for redress] there, you’re saying, ‘We might not be able to get away [with sexual harassment] in terms of a loophole, but we can pressure a potential victim to go into one of these weaker avenues, as an attempt to avoid scrutiny of likely primary duty of care failures… I am less than impressed [with the government’s response].

“They’re claiming to close a loophole, but what they’re actually doing is creating opportunities for business to steer victims a certain way – and that’s away from the big stick and into other avenues.”

“It has not really brought big business to the table (e.g., recommendations 41 and 44 being ‘noted’ only), and effectively created a hierarchy of avenues that business can then exploit by pushing victims to the less robust avenues instead of health and safety law.”

As there is currently minimal crossover between the anti-discrimination and Fair Work frameworks and the safety approach, Michalak says building interregulator cooperation is essential.

“If a complainant goes to Fair Work and gets a stop-harassment order – or lodges a complaint of anti-discrimination – it should automatically trigger a workplace health and safety regulator investigation. Then, even if a business wants to push a victim down those softer routes, instead of the safety route, the safety investigation is triggered anyway.”

“They need to consider people who are substantiated perpetrators as having breached their worker level duties. That is already sackable offence.” – Managing Director of PsychSafe, Dr Rebecca Michalak.

In alignment with the shift towards framing sexual harassment and assault as a workplace health and safety hazard, former Sex Discrimination Commissioner Elizabeth Broderick told HRM Magazine last month:

“Sexual harassment is no longer a workplace grievance issue. It’s fundamentally a leadership issue, and it’s attached to the health and safety agenda because it’s about psychological safety as well as physical safety… If there’s a fire, it’s incumbent on every one of us to put it out. Similarly, serial perpetrators need to be seen as workplace hazards.”

Summary dismissal for sexual harassment

In its response to the Respect@Work report, the government also agreed to amend the definition of ‘serious misconduct’ in the Fair Work Regulations 2009 to clarify that this type of behaviour within the workplace can justify summary dismissal. 

Employment lawyer Fay Calderone says this clarification recognises the “importance of ensuring that employers are clearly empowered to dismiss perpetrators of sexual harassment when appropriate and agreed to the recommendation to amend section 387 of the Fair Work Act to clarify that sexual harassment ‘can be conduct amounting to a valid reason for dismissal when determining whether a dismissal was harsh, unjust or unreasonable’.”

She adds that “clarifying sexual harassment is ‘valid reason’ for termination” may give employers “increased confidence in proceeding with terminations and defending claims when they are before the FWC”.

For HR, this means there is “no obligation to provide notice or pay notice in lieu under the National Employment Standard (NES) where findings of sexual harassment are substantiated,” says Calderone.

“Noting sexual harassment happens on a scale and with varying degrees of seriousness… employers will still be required to undertake an investigation into the conduct, determinate whether it is substantiated, consider the conduct in the context of the employee’s employment and ensure procedural fairness is afforded to employees during the disciplinary processes.”

Lengthening timeframe for complaints

The government has accepted the Respect@Work recommendation to extend the time period for complaints to the AHRC from six months to 24 months..

“That’s an excellent thing,” says Michalak.

“It goes to the trauma-informed approach. A lot of genuine victims are so psychologically damaged, and the processes that currently exist are so harmful, that it takes them a long time to even put together what’s happened to them.

“They need to get to a point where they’re strong enough to actually pursue a process … To have such a definitive and short-term cut-off fails to recognise the impact on victims.” 

While some critics may argue that extending the time period invites problems in trying to gather evidence, Michalak says that difficulty already exists, regardless of the time period imposed.

“Whether six months or two years, witnesses in the organisation might have moved on and be harder to get a hold of and so on, but [extending the time period] recognises that the victims of these behaviours are psychologically and/or physically harmed, and it takes time for them to be able to make enough sense of what happened to them, look into the [reporting and support] avenues available, and pick what they’re going to do, which depends on the outcomes they seek.”

What should HR do in light of the government’s Respect@Work response?

It seems clear that the safety framework is the preferred approach when supporting victims of sexual harassment. Given this, Michalak has one main piece of advice for HR practitioners:

“You must come out of the grievance and dispute lens, and get these hazards under the safety perspective. You need to change your policies and your investigation processes … You need to abide by your ‘primary duty’ to prevent sexual harassment from occurring, you need to ensure you aren’t enabling a perpetrator to stay – you’ve already got employment contracts that give you scope to summarily dismiss people for safety breaches,” says Michalak.

“They need to consider people who are substantiated perpetrators as having breached their worker level duties. That is already a sackable offence. Making that crystal clear is a good way to deter the behaviour.”

“Sexual harassment is no longer a workplace grievance issue. If there’s a fire, it’s incumbent on every one of us to put it out. Similarly, serial perpetrators need to be seen as workplace hazards.” – former Sex Discrimination Commissioner Elizabeth Broderick.

When approached for advice by a friend who is being bullied at work, the first thing Michalak always says is: “Don’t lodge an HR grievance; lodge a hazard report.”

She refers to BHP’s shift from addressing sexual harassment through the more traditional bullying and harassment space, to employing a risk management strategy and working under the primary prevention safety lens as an example of best practice. 

BHP’s approach speaks to Broderick’s observation of a “disruptive shift” in calling out violations such as sexual harassment at work.

“What we’re seeing more of is that if you are sexually harassing someone, you will be exited and we will no longer say you’re leaving because you ‘want to spend time with your family’ and give you a hefty payout … We’re actually going to name you and [your] behaviour,” Broderick told HRM Magazine in March.

Michalak also advises HR practitioners, where possible, to correlate informal reports and thereby ascertain if a bigger issue is at play.

“The OLSC (Office of the Legal Services Commissioner NSW) Project, for instance, has inbuilt mechanisms with which they can correlate informal reports … The regulator can now trigger compliance audits of firms where multiple informal reports have suggested that a firm has a particular problem, or conduct own motion investigations when a given lawyer appears to have a particular problem.”

She adds that if an incident of sexual harassment or assault is pursued criminally, that should never let an employer off the hook in terms of its own internal processes.

“The organisation can’t just sit on its backside and say, ‘We figure that’s a criminal matter, so we’re not going to do anything more with it – WHS duties are non-delegable by law’” says Michalak.

“I know organisations that even with serious sexual assault cases, they’ve got internal investigations running, while a criminal investigation is running concurrently. These are not mutually exclusive events.”

In summary:

• The government’s response to the Respect@Work report has been released with some key loopholes addressed in the ongoing fight against workplace sexual harassment. Judges and parliamentarians are no longer exempt from the Sex Discrimination Act, and the timeframe for victims to come forward with a complaint to the AHRC has been extended from six months to 24 months. It has also been clarified that sexual harassment constitutes serious misconduct.
• The government has ‘noted’ some key recommendations, including shifting the requirement that organisations take ‘reasonable steps’ to ‘positive steps’ in addressing sexual harassment under the anti-discrimination legislation, and granting the AHRC power to investigate, enforce and call for action. Managing director of PsychSafe, Dr Rebecca Michalak, says the government merely ‘noting’ these recommendations will weaken potential positive impacts of the response.
• HR practitioners are urged to adopt a safety approach in advance of, and when dealing with, instances of sexual harassment and assault. Michalak says the safety framework will “prompt business to actually engage with its obligations around proactive hazard identification, and primary prevention of harm”.

Has the Respect@Work report prompted you to do more in your workplace? Learn how to address sexual harassment at AHRI’s upcoming panel:
Finding Justice – A Panel Approach to Harassment and Culture on April 29.
Register here.