A new report by the Human Rights Commission has recommended changes to deal with workplace sexual harassment
The use of non-disclosure and confidentiality agreements in workplace sexual harassment cases should be restricted to increase transparency and allow victims to be heard, according to a new report by the Human Rights Commission.
The proposal is one of 11 recommendations outlined in a new report, Speaking from Experience: What needs to change to address workplace sexual harassment, which includes stories from people from diverse backgrounds who have experienced sexual harassment at work.
The report recommends amending the Sex Discrimination Act and other industrial laws to restrict the use of confidentiality and non-disclosure agreements in workplace sexual harassment cases, except if the person who was sexually harassed wants confidentiality.
“Strict NDAs continue to be overused in the resolution of sexual harassment matters,” the report said.
“Although NDAs mostly require all parties (employer, victim-survivor, and the perpetrator) to maintain confidentiality, the agreement is almost always requested by the perpetrator or employer as a form of protection, not by the person who has been harassed.
“For contributors [to the report] who mentioned NDAs, there was a strong sense that they protect harassers and organisations, rather than support victim-survivors. For those that had signed NDAs, even the decision of choosing a pseudonym to participate ... became a source of grief about losing their ability to speak for change.”
Speaking to HRD, Sex Discrimination Commissioner Dr Anna Cody (pictured above) said there was a feeling of being silenced among those who had experienced sexual harassment.
“We think it's part of that responsibility of employers, and as a part of their positive duty to eliminate ... workplace sexual harassment that they be prepared to talk about it and the measures that they've taken to ensure that it doesn't occur in their organisation,” she said.
The recommendation is in line with a model used in Ireland.
The report also recommends the introduction of civil penalties for breaches of the positive duty under the Sex Discrimination Act, which requires organisations and businesses to actively prevent workplace sexual harassment, sex discrimination and other unlawful conduct, rather than just responding when it occurs.
Dr Cody said there is currently a voluntary compliance approach to breaches of positive duty, and the commission works with employers to help them comply.
“But if they're still not willing to, then it shows a lack of intention and will to do so. It's important to have that as an additional option.”
The report included stories of workplace sexual harassment from people of diverse backgrounds including culturally and racially marginalised and migrant and refugee women, members of the LGBTQ+ community, young people, First Nations people and people with disability.
Dr Cody, who attended all the report’s listening sessions, said she was struck by how many people didn't know what constituted workplace sexual harassment and the lack of information, particularly for young people starting their first jobs or culturally or racially marginalised people new to Australia.
“The ways in which workplace sexual harassment often gets confused with sexual assault rather than thinking about it as comments, leering, sexual jokes, sexual innuendo, and other ways in which sexual harassment happened - that was one of things that really struck me,” she said.
“The other one was employers not knowing how to respond still, and that surprised me because we've talked a lot about the responsibilities of employers."
Cody said she was “surprised” by some of the stories she heard and highlighted the story about the training provided to a young supermarket worker.
“They had received lots of onboarding and lots of induction about how to look after fruit and vegetable within the fruit and vegetable department, and particularly, because of the susceptibility of bananas, multiple trainings on how to look after bananas. How to stack them. How to pack them. How to unpack them,” she said.
“Every month there'd be a training on that, and they only had one training session on workplace sexual harassment. And this young worker didn't even work in the fruit and veggie department.
“Those sorts of stories, which give a really strong message of what's important to an employer, really stayed with me.”
Cody said she remained “hopeful” about progress on eliminating workplace sexual harassment.
She said there was a deep commitment among employers to make sure that workplaces are safe and that everyone's respected.
"They take it very seriously. They are very concerned about having fair workplaces,” she said.
