Australia's sexual harassment laws have recently had a shake up.
Until recently, Australian employers wear required to tread a (somewhat) difficult legal path in order to terminate someone's employment for engaging in sexual harassment in the workplace. This could create a difficult work environment for the victim, particularly where the perpetrator of sexual harassment could (arguably) easily challenge the employers decision to terminate their employment.
Author: Farrah Motley, Legal Principal of Prosper Law.
In 2018, a national survey revealed that approximately 39% of women and 26% of men had experienced sexual harassment in the workplace. This number increased for aboriginal and Torres straight Islander employees, to 53% for women and 32% for men. The survey demonstrated that sexual harassment in the workplace is not just a problem faced by female employees, but it is a problem which may be faced by Australian employees of any gender.
The report found that in the five years preceding the report, one in three Australians had experienced sexual harassment in the workplace. Further, it found that Australia had fallen behind many developed nations in its handling of sexual harassment in the workplace.
A period of consultation and reflection then took place.
In 2020, the Respect at Work Report was released by the Sexual Discrimination Commission. That report outlined that Australia's legal mechanisms for dealing with sexual harassment in the workplace were no longer sufficient to empower employers to provide a safe work environment and one that was free from sexual harassment.
The report provided 55 recommendations, some of which (49 to be exact) were endorsed by the Australian Government and introduced to Parliament as changes to existing laws to deal with sexual harassment in the workplace.
Among the six recommendations which have been voted in favour of by the Australian Government include:
Sexual harassment in the workplace is now a valid reason to terminate someone's employment
A person who would like to report sexual harassment in a workplace now has two years to do so, instead of the previous six months
Public servants are no longer exempt from claims of sexual misconduct
Changes to Sexual Harassment Law in Australia
There is now a positive duty on employers to identify and eliminate risks of sex discrimination in the workplace.
Arguably, this existed prior to the recent changes through the operation of the State, Territory and Commonwealth workplace health and safety laws. In fact, Attorney-General, Michaelia Cash said that in her view, there was already a positive obligation on employers to eliminate sexual harassment in the workplace. For that reason, existing workplace health and safety legislation has not been amended to explicitly call out sexual harassment. However, the issue is that workplace health and safety legislation does not necessarily look at safety through the viewpoint of sexual harassment and the risks in the workplace that explicitly impact that problem.
The three key pieces of legislation that have been amended following the release of the Respect at Work Report are:
Australian Human Rights Commission Act
Fair Work Act
Sex Discrimination Act
Let's look at each of them...
Australian Human Rights Commission Act
Previously, the commission had the ability to disregard complaints if they were made more than six months after the alleged event took place. In practice, that rarely happened.
The new legislation has extended this period for allowing the Commission to disregard a complaint after two years (which, like now, is unlikely to be relied upon by the Commission).
Fair Work Act
There are amendments to clarify that sexual harassment is a valid reason for dismissal. However, this has (in reality) always been the case in practice.
Further, amendments have expanded the stop bullying jurisdiction to include stop sexual harassment orders. However, this area has generally not been popular with claimants as there is no monetary compensation attached to the stop bullying jurisdiction. Rather, the ‘stop bullying jurisdiction‘ is often used as an adjunct and a bargaining chip accompanying another core claim made by an employee.
This jurisdiction will come into effect within a couple of months, to enable the training of staff and updates to benchbooks.
Sex Discrimination Act
Five key changes have been made to the Sex Discrimination Act:
removal of existing exemptions (however, they did not apply to most employers in any event)
the concept of employees has been replaced with a concept of workers (so that an employment relationship is not a requirement)
victimisation is now a civil offence (employees who have made a complaint must not be treated badly and policies and training must seek to avoid harassment)
the concept of accessorial liability has been expanded (it is an offence to instruct, cause or permit sexual harassment)
gender-based harassment is now explicitly enshrined in the legislation
Employers need to ensure they address bystander conduct. Examples of bystander conduct include laughing when someone else pats an employee on the bum and a manager that knows it happening but says nothing.
Australian Cases Concerning Sexual Harassment
Fraser-Kirk v David Jones
Fraser-Kirk v David Jones is a case that is now a decade old; a poor reflection on Australia's treatment of sexual harassment in the workplace.
That case concerned Ms Fraser-Kirk, who was employed by the department store David Jones as a publicity coordinator. Ms Fraser-Kirk alleged that the CEO of David Jones, Mr Mark McInnes, had sexually harassed her by:
making sexual comments to her at a number of work functions
touching her inappropriately
asking her to go with him to Bondi in NSW and implying they would have sex
sending text messages asking for sex
Ms Fraser-Kirk successfully argued that both Mr McInnes and David Jones were liable for the harm caused to her and ultimately, both financially contributed towards the settlement of the claim - some $850,000.
While that sounds like a lot of money, the reputational damage and indirect cost to David Jones was likely to be much higher.
The recent media attention surrounding sexual harassment in the workplace in Australia was fuelled by allegations made by Brittany Higgins. While that case is a criminal matter at this stage, the matter raises significant and serious issues concerning sexual harassment in Australia.
Golding v Sippel and The Laundry Chute Pty Ltd
This case demonstrated an increasing willingness to award higher damages for sexual harassment in the workplace.
In this case, a manager asked a Philippine worker for sex, in return for more work at a laundromat. There were text messages evidencing this. The worker became psychologically distressed as a result of the sexual harassment.
When the matter was first heard, the Queensland Industrial Relations Commission awarded $30,000 in damages, including $5,000 in aggravated damages.
The matter then went on appeal and the court determined that $30,000 in damages was manifestly unjust. The court then increased damages to $130,000 for aggravated and general damages. The worker was also awarded an amount for economic loss, but as she was in a low paying job, the amount of economic loss was not significant.
Employers who hire employees in high-paying roles will need to be alert. If a highly paid worker makes a claim for sexual harassment and seeks an amount for economic loss, the damages could be significant.
Why is it Important to Address Sexual Harassment?
It's simple. To be a good corporate citizen. Also, because the financial implications and the risk of being sued is significantly increasing. So, too, have the amounts of money that employers have had to pay to settle a claim of sexual harassment in the workplace.
It's also important to consider the potential reputational risk to your organisation, particularly if your organisation does work with government bodies.
Government tenders are increasingly taking an interest in how an organisation address sexual harassment in the workplace. How do your policies reflect your culture, how do you want your culture to be positioned? How do your policies align with your branding and client profile?
Actionable Tips for Employers
By now you should have a good foundation of knowledge regarding Australia's sexual harassment laws. Now what?
Australian employers, in response to the recent changes to laws addressing sexual harassment in the workplace, should:
check their sexual harassment policies
conduct training on sexual harassment
make sure they have a whistleblower hotline which contacts employees with an independent third party
ensure there are multiple levels of contact person (not just HR)
motivate certain employees to be spokespeople to communicate with staff, host relevant events and lead discussions around legal obligations concerning sexual harassment in the workplace
bridge the gap between Australia's legal requirements and the business's culture
How can Prosper Law help?
We have helped numerous Australian businesses with employment law matter. If you need to hire an employment lawyer, talk to the team at Prosper Law today.
Farrah Motley | Legal Principal
PROSPER LAW - A Commercial Law Firm for Businesses
M: 0422 721 121
A: Suite No. 99, Level 54, 111 Eagle Street, Brisbane, Queensland Australia 4000