The Australian Human Rights Commission (AHRC) landmark Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Respect@Work) report shone a light on the scale of workplace sexual harassment across Australia and set out a comprehensive suite of reforms to address structural inequalities, to relieve the burden on victims, and to make workplaces safe.
The former government cherry-picked from the proposed reforms, rather than implementing the whole package. The Australian Greens are pleased that the Anti‑Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Bill) attempts to fill the gaps and implement the outstanding recommendations. The Bill, particularly the introduction of a positive duty on employers and investigation of systemic issues, represents long overdue progress towards cultural change and safer, respectful workplaces.
However, this Bill also presents an important opportunity to get the framework for this change right. Submitters to this inquiry have identified a number of ways in which the Bill should be strengthened to better achieve its aims—many of these are outlined in the Chair’s report, but without a commitment to make the proposed changes. The Australian Greens would like to see these amendments introduced to maximise the Bill’s potential to end workplace harassment and discrimination.
Positive duty
A positive duty on employers to create and maintain a safe workplace was the centrepiece of the Respect@Work recommendations, designed to drive the cultural shift at the heart of the report.
The positive duty forces a shift from the current reactive, adversarial ‘victim complaint’ approach that has failed so many people, mostly women, people of colour, people with disability or queer folk. Instead, it places the burden on employers, requiring them to take proactive steps to prevent harassment and discrimination in the first place and to act swiftly when harassment occurs.
However, the provisions establishing the positive duty should be clarified and strengthened in the following ways:
requiring employers to take ‘all reasonable steps’ to eliminate discrimination and harassment. This is consistent with the wording in s 106—the use of consistent terminology will allow jurisprudence to be developed and precedents applied, and reduce confusion for employers and employees about different compliance thresholds;
amending the relevant factors under s 47C(6) for determining whether an employer has satisfied its positive duty to include:
meaningful consultation with employees to ensure that actions will effectively address key risks and behaviours in a particular workplace; and
compliance with any relevant guidance material published by the AHRC;
requiring larger employers to publicly report on the steps they have taken to comply with their positive duty. This could be added as a reporting obligation under the Workplace Gender Equality Act 2012; and
allowing the AHRC to publish compliance notices issued to employers, as well as enforceable undertakings. This will provide transparency for employees and guidance for employers.
As noted below, if the positive duty provisions are to be effective, the AHRC must be provided with adequate funding to engage with employers and to undertake compliance and enforcement actions.
Recommendation
Require employers to take ‘all reasonable steps’ to eliminate discrimination and harassment;
Include consultation with employees and compliance with AHRC guidelines as relevant factors under s 47C(6); and
Authorise the AHRC to publish compliance notices.
Hostile work environment
The Respect@Work report found that sexual harassment may occur where a workplace environment or culture is sexually charged or hostile, even if the conduct is not directed at a particular person.
Complementing the positive duty, the recommendation to prevent hostile environments takes a workplace level approach to cultural change. It would provide an avenue to tackle workplace culture and practices that could create an environment in which harassment is facilitated, condoned, or ignored:
mine sites where women are habitually given menial tasks and where predatory behaviour is celebrated;
hospitality businesses where women are expected to wear skimpy clothing and put up with lecherous customers; and
lunchrooms where sexist, racist or homophobic jokes are told or laughed at by senior staff, or where anti-trans posters are displayed.
This is a worthwhile objective and central to focussing on the workplace rather than individual incidents. However, as drafted, the provision still applies primarily to interactions between individuals—one person must directly ‘subject’ another person to the hostile environment. Requiring this nexus fails to clearly target those who create or perpetuate a hostile work environment, rather than those whose behaviour is encouraged by that environment.
It is appropriate that people who discriminate or harass be held to account. However, their conduct will already be captured by ss 28A and 28AA. Unless it is made clear that s 28M goes beyond an individual to those creating the environment in which misconduct is fostered, s 28M will not achieve its aims.
As noted in the Chair’s report, several submitters also raised concern that s 28M fails to explicitly recognise bystander inaction as contributing to a hostile environment.
The factors to be taken into account in determining whether a person has contributed to a hostile work environment where conditions are ripe for discriminatory and harassing behaviour, should include intersectional considerations (such as age, race and disability), consistent with the approach in ss 28A and 28AA.
Further, s 28M only applies to creating a work environment that is hostile on the grounds of sex. It does not apply to the creation of environments that are hostile on the grounds of other protected attributes under the Sex Discrimination Act 1984, such as sexual orientation, gender identity, pregnancy or family responsibilities. This should be changed.
Strong, clear hostile work environment provisions will assist the Bill to achieve its key aims of creating safe workplaces for all.
Recommendation
Amend the hostile workplace environment provisions in s 28M to:
remove the requirement for a person to ‘subject another person’ to a hostile work environment, and instead make it unlawful for a person to contribute to the maintenance of a workplace environment that is hostile;
apply to conduct that makes a workplace hostile on the grounds of any protected attribute under the Sex Discrimination Act 1984; and
include intersectional factors such as age, sexual orientation, gender identity, race, religious belief and disability as considerations in determining whether a hostile workplace environment has been maintained.
Intersectionality
A core finding of the Respect@Work report and other work of the AHRC was that harassment and discrimination are often intersectional, with compounding effect. Sexual harassment is often accompanied or exacerbated by other forms of unlawful discrimination.
Though specifically targeted at sexual harassment and sex-based discrimination, the Bill presents an opportunity to require employers to take measures to ensure their workplace is free from discrimination on any grounds.
We support the proposed changes to the object clause to replace reference to ‘equality of opportunity’ with ‘substantive equality’ to more clearly reflect the structural inequalities that result in harassment and discrimination. We also recommend that the clause be amended to reflect gender neutrality and intersectionality.
Recommendation
Apply the positive duty and hostile work environment provisions to preventing any form of unlawful discrimination; and
Amend the objects clause in the Sex Discrimination Act 1984 to provide for ‘substantive equality’.
Costs
Financial risks remain a significant barrier to workers making complaints. As the Women's Legal Centre ACT observed to the Senate committee inquiring into the earlier Sex Discrimination and Fair Work (Respect at Work) Bill 2021:
Many women worry that they will not be believed and will be forced to pay the other side's legal fees. In the case of large businesses and government departments, these fees can be so significant that the average person would face financial ruin. It's no surprise many women decide not to take this gamble.
The decision to make a complaint against your employer or someone in your workplace will always be difficult. But deterring someone from coming forward could mean the difference between a harassing boss being held to account or allowed to continue harassing other employees. Costs should not be the determining factor in whether workers are prepared to call out bad behaviour and insist on a safe workplace.
The Respect@Work report recommended costs protections to address this, proposing a costs neutral model where each party bears their own costs. While providing a protection against adverse costs, this model would also mean many complainants could not recover their legal fees from an employer that was found to have acted unlawfully.
The Bill goes one step further and provides the court with discretion to award costs in appropriate circumstances. All the legal experts who engaged with this inquiry acknowledged that the approach proposed by the Bill is a significant improvement on the current situation. However, they also noted that providing a broad discretion to the court, albeit with guidance, will not provide the certainty needed to encourage victim survivors to come forward. As Kingsford Legal Centre and others have said:
[The proposed cost provisions] will continue to deter many of our clients from bringing discrimination law proceedings and greatly impact on access to justice.
Practising discrimination lawyer, Mr Kieran Pender, also noted that the risk of costs is currently a barrier to even strong cases proceeding to court:
I am presently acting pro bono for a complainant in a sex discrimination matter. Under the current costs regime, it is extremely unlikely that the client would proceed to litigation if the matter cannot be resolved through conciliation. The risk is far too high. Under the Bill, it would still be difficult for me to advise my client to proceed to litigation (notwithstanding what I consider to be good prospects), because of the uncertainty inherent in the operation of the presumption. The residual risk that, if unsuccessful, they would face an adverse costs order would still be prohibitive. The Bill is an improvement—a very welcome improvement. But I strongly believe law reform can and should go further still. Under an Asymmetrical Costs Model, I could confidently advise my client that they faced next to no risk of adverse costs in proceeding to litigation, provided they did not act vexatiously or unreasonably. That would truly enable access to justice.
The ‘equal access’ or ‘assymetrical costs’ model proposed by a number of submitters would overcome this barrier by protecting a complainant from an adverse costs order (other than where their conduct is frivolous or vexatious) but allowing them to recover costs from the other party if their case is made out. This approach, similar to the approach adopted in the Public Interest Disclosure Act 2013 and Corporations Act 2001, would remove a significant barrier to justice for victim survivors of workplace harassment and discrimination.
Recommendation
Amend s 46PSA to adopt an ‘equal access’ approach to costs protection for complaints.
Workplace Gender Equality reporting
Measuring data and monitoring progress is key to closing the gender pay gap that persists across all industries, and the inequality that contributes to sexual harassment and discrimination. The Australian Greens have long called for reporting obligations under the Workplace Gender Equality Act 2012 (WGEA) to apply to the public sector, and to private sector companies with more than 50 employees.
We are pleased to see the Bill extend these obligations to the Commonwealth public sector and will continue to push for robust and transparent reporting across more workplaces and across more measures.
Recommendation
Extend WGEA reporting obligations to all organisations with 50 or more employees: and
Amend WGEA reporting obligations to require relevant organisations to report on the steps they have taken to meet their positive duty, the number of sexual harassment and discrimination claims made, the number of claims resolved, and whether the organisation uses non‑disclosure agreements.
Funding to support implementation
As many have noted, the objectives of this Bill will be undermined unless the AHRC receives adequate funding to undertake the extra powers and duties conferred on it. The AHRC is producing practical resources to support employers to comply, and these will need to be dynamic and responsive to issues that arise as the positive duty and hostile work environment provisions are bedded down.
Significantly, the monitoring and enforcement powers given to the AHRC will only improve outcomes, encourage disclosure and deter bad behaviour if those powers are exercised regularly and consistently. The allocation of funding in the recent Budget is welcome, and must be regularly reviewed to assess whether it is sufficient.
In addition to the AHRC, support must be available to employees who seek to use the new provisions. As recommended in Recommendation 49 of the Respect@Work report, funding for a national network of Working Women’s Centres is necessary to ensure employees experiencing harassment can access independent, expert advice and support. The Working Women’s Centres already operating in Queensland, South Australia and the Northern Territory are best placed to roll out their service model across Australia.
Recommendation
Regularly review AHRC funding to ensure adequate resources are available for education, support, monitoring and enforcement; and
Support the extension of the existing network of independent Working Women’s Centres across Australia, including a national body to coordinate the roll out.
Reviewing the operation of the Bill
The Bill introduces a significant and welcome change to the way that we approach harassment and discrimination in workplaces across Australia. Given the scale and importance of the changes and the diversity of workplace environments and employee experiences, there should be an opportunity to review the operation of the changes in practice to see whether they are achieving the aims of the Respect@Work report.
We need to monitor how effectively the provisions of the Bill are driving the cultural change needed to reduce the shocking levels of harassment across the country, and assess what additional reforms or support might be needed.
Recommendation
Include a requirement for a statutory review of the operation of the Bill within 12 - 18 months of the commencement of enforcement provisions, and then every five years.
Other matters
As noted in the Chair’s report, the Bill addresses outstanding recommendations in the Respect@Work report that required a legislative response. A number of other recommendations, including a review of the damages framework and the use of non-disclosure agreements, must also be progressed with urgency to remove barriers to justice for victims of workplace harassment and discrimination.
The welcome repeal of s 13 of the Sex Discrimination Act 1984 by the Sex Discrimination and Fair Work (Respect at Work) Act 2021 removed the restriction on state government employees accessing remedies under the Commonwealth regime. However, the repeal was not made retrospective, meaning that a number of state government employees remain locked out of seeking justice under the Sex Discrimination Act. Section 47A, which was introduced at the same time and allowed civil action for victimising conduct, was given retrospective effect in recognition of the justice denied to victims by that option not having been available previously. The same right should be extended to those excluded by s 13.
Recommendation
Allow state government employees previously excluded from the operation of the Sex Discrimination Act 1984 by s 13 of that Act to make a complaint within an appropriate statutory timeframe.
Greens Senator for Queensland