Two years after the landmark [email protected]: National Inquiry into Sexual Harassment in Australian Workplaces Report ([email protected] Report), it is clear that the prevention of and response to sexual harassment and sex discrimination in the workplace will continue to be a significant issue for employers, irrespective of which party wins the federal election.
As an election issue, the ALP has sought to differentiate itself from the Coalition by promising to implement all 55 recommendations from the [email protected] Report. This includes the most significant recommendation, being the introduction of a ‘positive duty’ upon employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.
By contrast, the Government has to date taken a more cautious approach in relation to the proposed positive duty. Although the Government has acted on a number of recommendations in the [email protected] Report, such as clarifying the scope and operation of the Sex Discrimination Act 1984 (Cth) (SDA) and establishing the [email protected] Council, it is presently undertaking a period of public consultation concerning whether and what form the positive duty ought to take. It is unclear at this stage whether or not the Government will firmly commit to legislate the positive duty in advance of the election.
We focus on the positive duty because it is, by some margin, the most significant change recommended in the [email protected] Report. Business will need to devise processes that can be proactively implemented, regularly reviewed and audited, and integrated into people management systems, in order to comply. That makes tracking the issue important for business.
Why is a positive duty being considered?
The SDA does not currently impose any free-standing obligation upon employers to take proactive steps to prevent sexual harassment from occurring in the workplace. Rather, it addresses the problem only after an incident has occurred, principally by providing that an employer may be held vicariously liable for the conduct of its employees.
Relevantly, the SDA provides that vicarious liability will be attributed to the employer for any act of sexual harassment or sex discrimination engaged in by an employee, unless the employer can demonstrate that it took ‘all reasonable steps’ to prevent this from occurring.
Whether or not ‘all reasonable steps’ were taken is a matter to be determined in all the circumstances. Relevant factors include for example, the size of the employer’s business and the resources available, the size and composition of the workforce, the adequacy of complaints mechanisms, and the adequacy of policies and training.
Accordingly, while reducing the risk of vicarious liability being attributed to the employer does require employers to take proactive measures, the adequacy of those measures will only be subjected to scrutiny once a complaint is made. In addition, vicarious liability arises, legally, only in relation to an individual complaint – the legal duty is not a general one concerning the workplace as a whole.
The [email protected] Report observed that this situation places an undue burden upon individual complainants in relation to the prevention of sexual harassment and sex discrimination in the workplace. Unless a complaint is made, an alleged perpetrator of sexual harassment or sex discrimination (and by extension, the employer) may not be made aware of the offending behaviour, be held accountable for it or take steps to address it and prevent it from occurring again.
What is a ‘positive duty’ to eliminate sexual harassment, and what would it require an employer to do?
In summary, Recommendation 17 in the [email protected] Report provides that the SDA should be amended to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. In determining whether a measure is reasonable and proportionate, the Act should prescribe various factors that must be considered.
Elsewhere, the [email protected] Report provides extensive guidance in relation to the types of measures an employer might reasonably take to prevent sexual harassment and sex discrimination from occurring and to satisfy the criteria set by the legislation.
A notable shift from the reactive, complaint driven approach is the focus on assessing the risk of sexual harassment or sex discrimination occurring by reference to the structural and cultural drivers present in a particular workplace and taking positive steps to eliminate or minimise those risk factors to prevent such behaviour.
Like a risk assessment for workplace health and safety hazards, the purpose of a risk assessment for sexual harassment and sex discrimination risk is to identify the specific risks, and put in place control measures to address those risks.
In conducting a risk assessment, employers should also consider any available qualitative and quantitative data that can assist them to identify risks particular to their own workforce, including workforce demographic statistics, results of employee surveys; factors that increase vulnerability to sexual harassment or sex discrimination; complaints to human resources or to the board; information from whistle-blower complaints (appropriately de identified, as required), amongst others.
Control measures should then be devised and implemented in order to address the identified risks. Those measures may be broad and general – such as bystander training, or enhanced diversity and inclusion programmes – or be more tailored controls relevant to a specific work unit, for example, a cultural review, changes to personnel, or changes to rostering or supervision arrangements, systems of work or physical controls (lighting between work and residential areas, line of sight or duress alarms).
The [email protected] Report proposes that, in determining whether a measure is reasonable and proportionate such that the positive duty is discharged, the Act should prescribe the factors that must be considered including, but not limited to:
- the size of the person’s business or operations;
- the nature and circumstances of the person’s business or operations;
- the person’s resources;
- the person’s business and operational priorities;
- the practicability and the cost of the measures;
- all other relevant facts and circumstances.
Accordingly, the positive duty will require much more than the measures routinely implemented in order to discharge the current vicarious liability risk, and the norms in this area to date.
How would it be enforced?
The [email protected] Report also recommended that if a positive duty is implemented, the Australian Human Rights Commission should be given significant powers of monitoring and enforcement in relation to the positive duty.
Taken together, the positive duty as proposed in Recommendation 17, and the powers of enforcement conferred upon the Commission as proposed in Recommendation 18, would constitute a significant departure from the present scope of the SDA and the powers and role of the Commission, and the Commission noted that it would require additional funding in order to be able to adequately perform this function.
We think the introduction of the positive duty, particularly when coupled with the proposed enforcement mechanisms, will undoubtedly require a significant compliance investment from employers, above and beyond the ‘reasonable steps’ and existing actions being taken to meet obligations under workplace health and safety laws.
Having said this, since the release of the [email protected] Report, safety regulators have taken a number of steps to make clearer the existing obligations of employers to address sexual harassment and sex discrimination as a ‘psychosocial’ safety risk.
For example, Safe Work Australia has released extensive guidance materials outlining their expectations of employers in the context of preventing sexual harassment and sex discrimination in satisfaction of obligations under workplace health and safety legislation.
The increased focus by regulators on sexual harassment and sex discrimination as a workplace health and safety risk clearly requires an additional compliance investment from employers, particularly given the criminal nature of available sanctions. Nevertheless, as the [email protected] Report observed, it may take some time for safety regulators to build the requisite skills and capacity to effectively investigate and prosecute instances of sexual harassment and sex discrimination.
What have the parties committed to in relation to the implementation of the positive duty?
At this stage, the ALP has not provided a detailed position in relation to what aspects of the positive duty (and the enforcement mechanisms) it would legislate following the election, nor any of the detail mentioned above. But it has given a stronger indication of its commitment to do so.
The Government is presently consulting about the introduction of the positive duty, however its previous indications (including as set out in A Roadmap for Respect (Roadmap), and in the consultation paper itself) suggest that it would prefer to build the capacity of workplace health and safety regulators to investigate and prosecute sexual harassment and sex discrimination matters. Hence the position it takes to the election is likewise not detailed on the issues mentioned above, beyond commitment to continuing the process of consultation.
In April 2021, the Government released its response to the [email protected] Report in the form of the Roadmap.
The Roadmap ‘noted’ the recommendation concerning the positive duty.
Observing that a positive duty already exists under workplace health and safety laws, the Government indicated it planned to give further consideration to whether the introduction of a positive duty under the SDA would create ‘further complexity, uncertainty or duplication in the overarching legal framework’:
In February 2022, the Government released a consultation paper concerning, among other things, the positive duty.
The consultation paper emphasised the steps that have been taken by the Government since the release of the [email protected] Report to strengthen the capacity of the existing workplace health and safety framework to address sexual harassment and sex discrimination.
With respect to the proposed enforcement powers to be conferred upon the Commission, the consultation paper observed that, given the conciliation function performed by the Commission, conferring these powers upon the Commission may ‘undermine perceptions of impartiality and could discourage employers from engaging with conciliatory processes. It may also create an actual or perceived conflict of interest between its conciliatory and enforcement functions.’
Noting that there are some regulators (such as ASIC) that possess powers of both conciliation and regulation, the consultation paper observed that there are means by which any such conflict could be managed. However, it also observed that conferring powers of enforcement upon the Commission would ‘overlap with existing employer WHS obligations for managing sexual harassment’, potentially creating ‘regulatory complexity and uncertainty for employers’.
The public consultation process concluded on March 18, and the government has not, at the time of this publication given a further indication of its intended policy platform in relation to the positive duty. However, the Government’s indications to date – notably, in the Roadmap and in the terms of the consultation paper – do suggest that it may be likely to prefer a model that strengthens the existing workplace health and safety framework to address sexual harassment and sex discrimination in preference to a new positive duty within the SDA.
Labor has committed to ‘fully implement’ all 55 recommendations from the [email protected] Report.
This includes the positive duty, which it has promised to legislate by ‘task[ing] the Workplace Sexual Harassment Council to consult with employers, workers, unions and legal experts on the design and implementation of this strengthened legal duty.’
Although Labor’s commitment to legislation is clearer, the precise scope of any legislated positive duty remains to be seen. It has however promised to implement the positive duty in a way that ‘minimises’ the regulatory burden on employers, which in light of our comments above concerning the inevitable regulatory and compliance impact of the implementation of Recommendations 17 and 18, seems somewhat unachievable. Should the positive duty ultimately be introduced, employers should be prepared for an increased compliance investment with respect to these issues if this is not already occurring.
What should employers be doing right now?
There are a number of steps that employers can be taking now to ensure that they are adopting an approach consistent with the emerging best practice in preventing and addressing sexual harassment and sex discrimination in the workplace.
In particular, taking a risk assessment approach in which an organisation identifies the manner in which cultural and systemic drivers of sexual harassment manifest in their organisation and are experienced by different groups across their workforce (particularly those groups most vulnerable to sexual harassment and sex discrimination) will reveal the areas of focus for preventative action.
This risk assessment ought to be conducted in an integrated manner across functional areas such as human resources, diversity and inclusion, WHS and functional business units/divisions. Only then can all the risk factors be identified (physical, structural, cultural and systemic) and effective control measures designed to address the full spectrum of the drivers of risk (for example gender diversity programs to increase the representation of women in leadership, targeted complaints mechanism for workers who do not speak English, reward systems that support the desired changes in behaviour).
Best practice ensures this risk assessment and regular review of its effectiveness is integrated into the organisation’s risk governance framework. Corrs offers a highly experienced multidisciplinary team to support organisations with the development of their risk assessments and methods for integrating the relevant control measures across the workplace, as well as briefing senior leadership teams about the importance of properly and holistically addressing this risk in the workplace.
Whether a positive duty is implemented or not, a safety-focussed approach will be far more effective at attacking the insidious cultural and systemic drivers of sexual harassment and sex discrimination that have clearly not been effectively addressed by the systems organisations have had in place over the last two decades.
As the election unfolds, employers should keep a watchful eye for any further, more detailed, policy or proposed legislative change concerning these issues. With high-profile advocates continuing to press for reform in this area, we can expect this to remain a feature of the campaign.
 Consultation Paper, 31.
This publication is introductory in nature. Its content is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this publication. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.