Taking a WHS approach to sexual harassment is the way to adhere to legislation, say lawyers
The #TimesUp and #MeToo campaigns ignited a global debate on gender inequality and sexual harassment that has played out in different ways in different countries. To refresh memories on how Australia arrived at its current position on sexual harassment in the workplace, we must go back to 2020, when the sex discrimination commissioner, Kate Jenkins, published her landmark national inquiry into sexual harassment in workplaces by the Australian Human Rights Commission.
Jenkins found the prevalence of sexual harassment in Australia to be “endemic”, conservatively estimating the cost to the economy at $3.5 billion per year. The report also documented the long-term health and well-being implications for people (predominantly women) who experience such harassment and made 55 recommendations to reform the way sexual harassment is prevented, identified and acted upon.
Joe Murphy, partner employment relations at law firm Piper Alderman, considers Jenkins’ report to be “groundbreaking”.
“For the first time it brought together all the jurisdictions: industrial, work health and safety, discrimination, sexual harassment – they all converge in her report and Jenkins successfully found some common ground,” Murphy says.
The previous Morrison government took a year to respond to the report and its recommendations fell far short of what Jenkins had proposed. One of Jenkins’ recommendations, which the Morrison government side-swerved at the time, has now been fully integrated into legislation under the Labor administration. It’s that businesses now have a positive duty to proactively take steps so that they can demonstrate – if they are asked – that they’ve taken reasonable and proportional measures to address the risk of sexual harassment and related conduct, in the workplace.
“I have had a range of cases over the past 20 years where an employee has gone rogue and sexually harassed another employee and the employer can’t contemplate that it is considered to be their responsibility,” Murphy says.
Those attitudes must now be readjusted in light of the new rulings, he says.
“These new laws will provide an environment where, if you cannot demonstrate that you have taken active steps as part of a positive duty to prevent sexual harassment in the workplace, and sexual harassment has occurred, then you will be liable under the vicarious liability provisions,” he says.
How business can get on the front foot
Murphy’s advice to business is to adopt a work, health and safety approach.
“That means upfront you have already conducted a risk-assessment and asked: where are the points in my business where there is risk? Where are the environments, what are the events, where are the people; you have to assess all of those things,” he says. “Then ask yourself, is the training you provide adequate? Are the policies and procedures in place adequate?”
One of the great things about doing this upfront, he says, is that you have a documented process and you can demonstrate that if the Human Rights Commission comes knocking. It can also be used as part of the “reasonable steps defence” if there is sexual harassment in the workplace as it can show you have been meeting the requirements.
Distributed workplaces have made the issue, if anything, more opaque, with a need to define what constitutes the workplace.
“Traditionally, we have people sitting in meeting rooms where we had glass walls – but now we have people at home using one-on-one Zoom calls where there isn’t that same level of oversight,” says Marcus Zeltzer, co-founder of payroll compliance company, Yellow Canary.
Zeltzer also points to workers’ compensation systems in Victoria and NSW that are propped up by the state government financially as they are both running deficits after years of surplus.
“The volume of claims is increasing rapidly and psycho-social claims are a large proportion of overall claims,” Zeltzer says.
Murphy agrees there are implications for workers’ compensation claims – one of the easiest claims to make, he says.
“The bar is set very low for workers’ compensation – that is why upfront risk assessment is so important,” Murphy says. “If you get that done, you’re making your workplace a better place to work.”