New harassment legislation puts focus on employer compliance

One in three Australians experience sexual harassment at work.

So if you are sitting in a meeting right now with nine other people, that means three of them have been sexually harassed at some point.

Late last year – November 28 to be exact – the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 was passed by the Commonwealth Government. It became effective from December 13, 2022.

The new legislation introduces a positive duty requiring employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual and sex-based harassment, hostile work environments and victimisation, and confers new compliance and enforcement functions on the Australian Human Rights Commission (AHRC).

“All employers need an anti-harassment policy - or appropriate workplace behaviours policy - that at a minimum prohibits sexual harassment, includes a definition and examples of relevant prohibited conduct, sets out clear instructions for reporting harassment and outlines the potential consequences if someone engages in sexual harassment,” Cara Leavesley, special counsel, 3D HR Legal, said.

However, the existence of such a policy alone is not enough to stop sexual harassment — it must be communicated to staff, understood and applied, she said.

“While many employers rely on ‘off the shelf’ HR/legal training that the employees do not listen to — let alone understand. Such training will rarely be enough to satisfy legal obligations; let alone stop the sexual harassment from occurring in practice.”

When it comes to allegations of sexual harassment, “factors such as the seriousness of the allegation, seniority of the person involved and whether the complainant wants the matter dealt with informally will be relevant,” says another employment lawyer.

Speaking up

A ’Time is Up’ report statistics showed that only 18% or one in five instances of sexual harassment are reported. Documented reasons for not reporting included not considering the conduct ‘serious enough’, that it was easier to keep quiet, that people were concerned that others would think that they were overreacting, that a report wouldn’t change anything, that the complaint process would be embarrassing/difficult or that reporting the harassment could hurt their career.

“This data demonstrates that the sexual harassment frameworks involved did not adequately define the standards of behaviour that employees have a right to expect in the workplace, encourage bystanders to report sexual harassment or support/appear to protect and protect those who needed to report to ensure that they would not be victimised or vilified,” Leavesley said.

“Notably, data from the same report showed that 60% of those who did report sexual harassment reported a change in the behaviour/exposure to sexual harassment a result.

“This demonstrates the need for employers to take a proactive and holistic stand against sexual harassment that actually removes the barriers to reporting and transforms far beyond paying the eradication of sexual harassment a ‘lip-service’.”

Under Australia’s new legislation, employers will need to proactively take ‘reasonable and proportionate measures’ to eliminate sexual harassment. If the AHRC suspects an employer is not meeting this threshold, it can initiate action to address it using its new compliance and enforcement powers.

Last fall, the Australian government launched the Respect@Work website, which aims to support employers in preventing workplace sexual harassment and in fostering safe and inclusive spaces for employees.

Breakout

What do employers need to do when a sexual harassment issue is raised? Leavesley offered this advice:

1. Take the report seriously: Take every report seriously and investigate promptly and thoroughly.
2. Provide support: Provide support, not just to the person who reported the harassment but all other parties. For example, access to counselling, medical treatment, or other resources. 
3. Maintain confidentiality: Share information on a need-to-know basis only – de-identify where possible.
4. Investigate: Conduct a thorough, impartial and trauma informed investigation to determine the facts and assess the situation. 
5. Take action: If the investigation confirms that harassment has occurred, take action to stop the harassment and prevent it from happening again. Whatever the outcome, take the opportunity to reflect and review the sexual harassment prevention framework to ensure constant improvement.