HRM speaks with Federal Sex Discrimination Commissioner Kate Jenkins about her recommendations for tackling sexual harassment in the workplace.

Update (03/09/21): The Respect@Work legislation has passed both houses of parliament. The new Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 is designed to empower the FWC to make anti-sexual harassment orders in a similar way to the ‘anti bullying orders’ it current issues. These orders will take effect two months after the implementation of the Bill to give the FWC adequate time to prepare.

The Bill does not include Sex Discrimination Commissioner Kate Jenkins’ recommendation for employers to have a positive duty to take “responsible and appropriate measures to eliminate sexual harassment, discrimination or victimisation”. You can read the government’s full response here.

Sexual suggestive comments, requests for sex, indecent exposure and leering behaviour are daily workplace experiences for one in three Australians. And, a landmark report released  on the eve of International Women’s Day, could mean employers may soon be legally required to stop such things from happening.

Following months of consultation around the country and 460 submissions from government agencies, business groups, community bodies and, most importantly, victims, Federal Sex Discrimination Commissioner Kate Jenkins has released the Respect@Work report, proposing 55 recommendations to government to address pervasive sexual harassment in the workplace.

The recommendations include establishing the independent Workplace Sexual Harassment Council; introducing an enforceable “positive duty” to the Sex Discrimination Act; and adding a ‘stop sexual harassment work order’ to the Fair Work Act.  An education program is also proposed, which would include a national campaign to change behaviours that drive sexual harassment, as well as targeted campaigns to educate young people on their workplace rights.

“Sexual harassment occurs in every industry, in every location, and at every level. It is not just a few bad apples. We heard throughout the Inquiry that employers of all sizes and across all sectors were eager to know what they could do to prevent sexual harassment in the workplace, and our report provides recommendations that we expect will help them to achieve that,” Jenkins told HRM.

A worrying backdrop

The Australian Human Rights Commission’s (AHRC) 2018 survey on sexual harassment in Australian workplaces, which HRM previously reported on, noted that one in three people had experienced sexual harassment at work – which was a significant increase compared to previous AHRC surveys. 

That survey also found 71 per cent of Australians had been sexually harassed at some point in their lifetimes, with more than four in five (85 per cent) of Australian women and more than half (56 per cent) of Australian men over the age of 15 experiencing the behaviour.

Unfortunately, the 2018 national survey showed less than one in five people (17 per cent) who had been harassed made a formal complaint. Jenkins believes many Australians didn’t want to complain for fear of being alienated at work, not believed, or fired.

“I have been devastated by the experiences of sexual harassment within workplaces I have heard about through this Inquiry, the harms suffered by victims and the cost to the economy. 

“Australians don’t want to complain about sexual harassment, they just want solutions to make it stop,” Jenkins announced at the launch of Respect@Work.

The report details the most common forms of verbal sexual harassment as sexually suggestive comments or jokes, intrusive questions about someone’s private life or physical appearance, repeated invitations to go on dates, or requests or pressure for sex. 

Other forms include sexually explicit pictures, posters or gifts, intimidating or threatening behaviours such as inappropriate staring or leering, sexual gestures, indecent exposure, as well as sexually explicit emails, SMS or social media, indecent phone calls, repeated or inappropriate advances online, or sharing or threatening to share intimate images or film without consent.

What it means for employers

Returning to the recent Respect@Work report, the proposed solutions include bolstering the Sex Discrimination Act to oblige employers to stop harassment in the workplace and allow the AHRC to assess employers’ compliance with the positive duty. It also recommends those who aid or permit someone to sexually harass another person should be made liable.

“A positive duty asks employers to put more focus onto promoting a safe workplace environment, with the aim of making incidents of sexual harassment less likely to occur. This is opposed to a focus solely on managing incidents after they have arisen.

“One example of how a workplace might work towards this is to have regular discussions with staff about their rights and responsibilities with regards to sexual harassment, rather than what might be considered a ‘tick-a-box’ exercise once a year,” says Jenkins.

The report also proposes new enhanced inquiry functions for the Commission allowing it to inquire into systemic unlawful discrimination, including systemic sexual harassment, as well as establishing the Workplace Sexual Harassment Council to improve coordination, consistency and clarity across the key legal and regulatory frameworks.

Changes to the Fair Work Act

Changes to the Fair Work Act are also proposed to expressly prohibit sexual harassment, including the introduction of a ‘stop sexual harassment work order’ (similar to the stop bullying work order) and clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable.

Jenkins points to recommendations 41-48 in the report as particularly relevant to human resources personnel, which address the prevention of and response to sexual harassment in the workplace.

“These recommendations in particular encourage that sexual harassment is clearly prohibited and that ‘stop sexual harassment’ (SSH) orders be introduced. 

“Our intention is to remove complexity to make sexual harassment clearly unlawful and to create a new avenue to access SSH orders for quick, practical solutions for sexual harassment claims by ongoing employees,” says Jenkins.

Jenkins says sexual harassment is an issue across the board and calls on employers to read the report and take action.

“I would suggest that HR personnel first read the executive summary for an overview, and then focus on our advice and recommendations in Chapter 6.

“In particular, we identified how management personnel can sometimes inadvertently cause harm to victims; we encourage them to familiarise themselves with the drivers of sexual harassment and take a more victim-centred approach to managing reports of sexual harassment,” says Jenkins.

AHRI’s short course on Investigating Workplace Misconduct outlines best practice investigation techniques and will help you to gather the right information to support affected employees.