Our advice for the 2022 survey on strengthening legislation to reduce sexual harassment in the workplace
About Not in My Workplace
We are called Not In My Workplace and we are a collective of CEOs, senior Executives, Chairs and Board Directors from across private, not-for-profit and public sectors making a stand to bring about change. Our organisation was incorporated in Victoria in September 2018, under the Incorporated Associations Act.
Not In My Workplace was formed followed ongoing a repeated exposure of widespread sexual harassment events such as those behind the global and Australian #MeToo movement. Not In My Workplace has continued to facilitate debate and dialogue across industries, spurred by the ongoing exposure of high-profile sexual harassment, assault and bullying incidents in Australian corporate, non-government and public sector industries.
Most recently, Not In My Workplace hosted a virtual national summit on the findings of the Respect@Work report that was attended by speakers and participants from across the corporate, NGO and political arenas. We are bipartisan in our approach and our primary aim is the eliminate workplace sexual harassment in all industry sectors, particularly our own.
Not In My Workplace has held four summits since 2018 and reached more than a thousand senior executives across corporate Australia. We provided a submission to the original National Inquiry into Sexual Harassment and support the Australian Government adopting in full all 55 recommendations of the Respect@Work Report.
2. The Case for Legislative Reform
There is a compelling case for legislative reform to address the issue of workplace sexual harassment and protect people and organisations from its occurrence and its impacts. Specifically, sexual harassment:
• is wide-spread and impacts a significant proportion of the population
• has significant health and wellbeing impacts
• leads to decreased productivity and negatively impacts the economy
• leads to the loss of trust in private and public institutions, particularly when it is not adequately or fairly addressed
• the Commonwealth and the Australian community have heavily invested in the development and delivery of the National Inquiry into Sexual Harassment and the resulting Respect@Work report.
2.1 Sexual Harassment is Wide-Spread and Impacts a Significant Proportion of the Population
The Fourth National Survey on Sexual Harassment in Australian Workplaces found that 71 percent of Australians have been sexually harassed at some point in their lives, and more than a third of Australians have been sexually harassed at work. Workplace sexual harassment has enduring and serious impacts on individuals, including victims and witnesses, on organisations and at a broader societal level. These impacts were thoroughly investigated in the National Inquiry into Sexual Harassment in Australian Workplaces and formed the basis for the comprehensive recommendations in the ensuing Respect@Work report.
2.2 Sexual Harassment has Significant Health and Wellbeing Impacts
Sexual harassment can cause a range of serious, complex and long-term health impacts. The Fourth National Survey found that nearly 20 percent of people who experienced workplace sexual harassment also experienced negative health and wellbeing impacts. Impacts can range from feelings of self-doubt and loss of confidence, to post-traumatic stress disorder (PTSD), suicide ideation, self-harm, chronic disease, hypertension and cancer (Respect@Work, 2020, p. 265 - 268).
2.3 Sexual Harassment Leads to Decreased Productivity and Negative Economic Impacts
Economic modelling by Deloitte Access Economics estimates that workplace sexual harassment cost the economy $3.8 billion in any given year. This includes $2.6 billion in lost productivity and nearly $1 billion in other financial costs in one year alone (Deloitte Access Economic, 2020). The financial costs of workplace sexual harassment are predominantly born by employers, who wear 70 percent of financial costs, with governments wearing 23 percent and individuals, 7 percent.
2.4 Sexual Harassment Leads to Loss of Trust in Institutions
The presence of sexual harassment in any institution symbolises how gender shapes the political realities of that institution (Berthet & Kantola, p. 144, 2021). Whether it is a multinational corporation, a small business, a non-government organisation or the Australian Parliament, sexual harassment in any of these institutions erodes trust in that institution, and indeed trust in institutions within that sector. Further, the presence of sexual harassment shows that people within that institution are not considered nor treated equal. Legislation plays a critical role in creating institutional environments where such inequality is unlikely to happen in the first place.
2.5 The Community and the Commonwealth Have Made Significant Investments in Addressing this Issue
Australia has invested a significant amount of time, effort and energy in uncovering and addressing sexual harassment in workplaces. Through the Australian Human Rights Commission, the National Inquiry into Sexual Harassment in the Workplace considered hundreds of submissions, listened to hours of testimony, conducted annual research and been a key part of many inquiries and investigations. Australian organisations have embraced the Respect@Work and Boards across the country are starting to give the issue of sexual harassment the priority it deserves. Given the significant investment, it is important that legislative reform is strong, sustainable and makes meaningful changes to protect people from sexual harassment and ensure the nation’s workplaces are safe for people of all genders.
3. Progress to date
In 2021, the Respect at Work Bill incorporated a number of important elements which we welcomed and supported. These are:
1. The expansion of the Sex Discrimination Act to cover sex-based harassment.
2. The inclusion of subcontractors, labour hire workers, outworkers, trainees, unpaid work experience students in the Sex Discrimination Act.
3. The extension of the time limit on termination of complaints from six to 24 months.
4. The inclusion of members of Parliament and their staff and federal and state judges into the Act.
5. Amendments to the Fair Work Act that include stop sexual harassment orders and to ensure that sexual harassment can be a valid reason for dismissal.
4. However more is needed
While the Act included positive advancements, we argued given the gravity of the impact of sexual harassment, its prevalence and the significant investment and wide-spread support of the National Inquiry Into Sexual Harassment, more legislative change is needed if we are to make a meaningful positive impact on the elimination of workplace sexual harassment.
The current round of consultation considers a further six specific recommendations set out in the Respect@Work report that relate to legislative reform.
Issue 1: Recommendation 16 (c)
In its response to the Respect@Work report, the Australian Government ‘Agreed in Principle’ to Recommendation 16 (c) that would amend the Sex Discrimination Act to expressly prohibit creating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex. While it is acknowledged in the Respect@Work report that a sexually hostile work environment could constitute unlawful sex discrimination under the Sex Discrimination Act, we believe it is important to clarify this in the legislation, particularly where conduct of a sexual nature in a workplace is not expressly directed towards a person. In this instance, this type of conduct may not be found to be “in relation to” the complainant and therefore fall short of the existing statutory definition of sexual harassment. Accordingly, a worker subjected to that sexually hostile work environment would need to establish the existence of sex discrimination. This is a significant and disproportionate impost on the worker. Further, while existing workplace health and safety laws require employers to take measures to create safe working environments, there is no individual complaints process under those laws.
Advice: Say YES to amending the Sex Discrimination Act to expressly prohibit creating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex.
Issue 2: Recommendation 17
This recommendation proposes amending the Sex Discrimination Act to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. The Government Response has “noted” this recommendation and committed to assessing whether such amendments would create further complexity, uncertainty or duplication in the overarching legal framework. As noted in the Respect@Work Report and the Government Response to this report, the Workplace Health and Safety regime creates duties to take reasonably practicable steps to prevent risks to worker health and safety. This includes the risk of sexual harassment. A positive duty to this effect arises under s15 of the Equal Opportunity Act 2010 to take reasonable and proportionate measures to eliminate that discrimination, sexual harassment or victimisation as far as possible. The adoption of recommendation 17 would bring the Sex Discrimination Act into line with these other duties.
Advice: Say YES to amending the Sex Discrimination Act to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.
Issue 3 and 4: Recommendations 18 and 19
Recommendations 18 and 19 propose that the Sex Discrimination Act give the Australian Human Rights Commission the power to undertake systemic investigations, for instance where there is a pattern of sexual harassment in a sector or workplace, and undertake compliance monitoring to ensure that industries, organisations or sectors are complying with a new positive duty. While the Government has noted Recommendation 18 in its response, it has also committed to further consider this recommendation pending the outcome of its assessment of Recommendation 17 (relating to a positive duty to eliminate sex discrimination). The Government Response also recognises that there are advantages to the Commission having a broader suite of powers to be exercised upon the referral of a matter for investigation by Government. It is not clear why this consideration of recommendations 18 and 19 are contingent on consideration of recommendation 17 and we believe that these recommendations should be adopted as part of this amendment.
Advice: Say YES to amending the Sex Discrimination Act to give the Australian Human Rights Commission the power to undertake systemic investigations and monitor compliance to ensure that industries, organisations or sectors are complying with a new positive duty.
Issue 5: Recommendation 23
This recommendation proposes an amendment to the Australian Human Rights Commission Act to allow public interest actions to be brought to court by representative bodies such as unions. The Government response to this recommendation notes that there is an existing mechanism to enable representative proceedings in the Federal Court. However, while a complaint with the Commission can be lodged by person or trade union, this differs from the ability to bring proceedings in the Federal Court, which is limited to an “affected person” or the technical and complex representative proceedings process. Adoption of this recommendation would provide greater access to justice for employees or victims of sexual harassment or assault in the workplace.
Advice: Say YES to amending the Australian Human Rights Commission Act to allow unions and other representative groups to bring representative claims to court.
Issue 6: Recommendation 25
This recommendation proposes an amendment to the Australian Human Rights Act to include a cost provision consistent with section 570 of the Fair Work Act. While the Government has Agreed in Principle to this recommendation it has noted that “the determination of cost orders is already at the discretion of the court” and said that it will review cost procedures in sexual harassment matters to ensure they are fit for purpose. There are no current specific provisions relating to costs in unlawful discrimination proceedings under the Sex Discrimination Act before the Federal Court of Australia or the Federal Circuit Court of Australia. The courts have a general discretion to order costs, and generally exercise those powers according to the principle that the unsuccessful party usually pays the successful party’s legal costs. However, as acknowledged in the Respect@Work Report, the risk of cost orders may act as a disincentive to pursue sexual harassment matters in the federal jurisdiction. The Commission expressed concern about the negative impact on access to justice, particularly for vulnerable members of the community arising from this. Additionally, a disincentive on applicants pursuing sexual harassment matters is of significant concern in a system which relies almost entirely on the victims of sexual harassment to enforce the prohibition. It is not clear why such an amendment should not be included in the Bill if the recommendation is Agreed in Principle, nor is it clear why any further review of cost procedures in sexual harassment matters should be required. Advice: Say YES to amending the Human Rights Act to include a cost provision consistent with section 570 of the Fair Work Act.
5. Case Studies Supporting Stronger Amendments
The following three case studies are taken from two of our committee member organisations and demonstrates why a system that is reliant solely on people making complaints is disproportionate and unfair to victim – survivors and their support network. The names have been changed to protect privacy.
Case Study: Sally
“Sally was new and young and wasn’t aware of the processes and policies. She was offered money…$10,000 for a ‘date’, a colleague overheard the customer upping the money and that person raised the complaint. That customer is now barred from the venue. The reporting system still relies on employees to speak out and there is no proactive approach to find out what is happening by managers yet”
Case Study: Far Reaching Consequences
“It doesn’t matter where it (sexual harassment) happens. I was a direct manager. I was on shift and at that time it happened in the main part of the venue and it was a male customer she was serving, and she was in tears. She had told me her mother was coming in eight hours a day and sitting close to where she was working because of what had been going on. She told me her father used to follow her in his car to make sure she got to work OK. I had big concerns because of the lengths that her family had been going to, to keep her safe”.
Case Study: Regional City Pharmacy
Our organisation operates an independent nursing service, under a state government contract, inside a number of privately-owned pharmacies. In 2019 two of our nurses reported that a 16 year old pharmacy assistant had sought their support because of a pharmacist harassing her. She said the pharmacist was touching her inappropriately at work, had accessed her personal phone number and was contacting her via text message and on social media and offering to pick her up from school and give her lifts to work. This contact was unwanted and unsolicited. Our staff advised the young staff member to speak to the owner of the pharmacy business to have this behaviour addressed. The young staff member then reported to our staff that the owner had declined to take action, as it was very difficult for him to recruit pharmacists. The young staff member resigned and left her position, she was very concerned about taking further action because the business is based in a regional city.
6. Support Services
If you have experienced sexual assault or sexual harassment and feel you would like to speak to someone for support or information, 1800RESPECT (Phone: 1800 737 732) can provide counselling 24-hours a day, 7 days a week.
For more support services, including how to make a complaint about sexual harassment visit humanrights.gov.au/our-work/sex-discrimination/list-support-services
7. Concluding Remarks
You have an opportunity to make an impact and have your say. The government have asked for our input, please don’t miss this chance. Given the enormous impact that sexual harassment has on individuals, institutions, the economy and our community, bolder and more targeted amendments are required.
The National Inquiry into Sexual Harassment in Australian workplaces was a significant investment by the Australian Government and all who participated in it. We also believe, like many employers, that the Respect@Work report and recommendations will provide the generational change required to address workplace sexual harassment. We strongly believe this set of legislative reforms should honour and respect that body of work and heed the evidence-based reforms recommended within it.