RESPECT@WORK: AUSTRALIAN GOVERNMENT CONSULTS ON POSITIVE DUTY TO PREVENT SEXUAL HARASSMENT

RESPECT@WORK: AUSTRALIAN
GOVERNMENT CONSULTS ON
POSITIVE DUTY TO PREVENT
SEXUAL HARASSMENT
08 March 2022 | Insight
Legal Briefings – By Anthony Wood, Lucy Boyd and Ali McPherson

With workplace harassment remaining high on the agenda, political
commitment to sweeping reform is still unclear

The issue is likely to remain in the public eye as the 2022 federal election campaign draws
closer. The Coalition Government is facing sustained pressure to take further action on
workplace sexual harassment and with continued agitation for change from prominent
advocates such as Brittany Higgins and Grace Tame, no matter which party is elected, we
can expect to see a continued push for legislative change in this area.

SO, WHAT IS THE COALITION’S POLICY ON THIS
TOPIC?
Whilst some legislative changes were made last year in response to Kate Jenkins’
Respect@Work recommendations (see the Sex Discrimination and Fair Work (Respect at
Work) Amendment Act 2021 (Cth)), there are 7 proposed legislative changes which remain
unactioned and will not be legislated before the federal election in May 2022. However, on
14 February 2022, Attorney General Michaelia Cash released a consultation paper and survey
seeking feedback on the outstanding recommendations from the Jenkins’ report (see the
announcement here), including recommendations:

    for a federal positive duty on employers to take reasonable and proportionate measures
    to eliminate sex discrimination, sexual harassment, and victimisation, as far as possible;

    for an express prohibition against providing, creating or facilitating an intimidating,

hostile, humiliating or offensive environment on the basis of sex;

    to provide the Australian Human Rights Commission with a broad inquiry function to
    inquire into systemic unlawful discrimination, including sexual harassment;

    to allow unions and other representative groups to bring representative claims to court;
    and

    to insert a costs provision into Australian Human Rights Commission Act 1986 (Cth) to
    provide that a party to proceedings may only be ordered to pay the other party's costs in
    limited circumstances.

AND THE ALP’S POSITION?
In contrast, the ALP has undertaken that, if elected, it will implement all 55 Respect@Work
recommendations, including the federal positive duty and the other outstanding legislative
recommendations listed above, plus the recommendation for an express prohibition against
sexual harassment in the Fair Work Act 2009 (Cth).

Anthony Albanese’s policy platform stresses ensuring women’s safety at work as being a key
concern for Labor. It states:

“Unlike the Government, an Albanese Labor government will fully implement all 55
recommendations of the Sex Discrimination Commissioner’s groundbreaking Respect@Work
Report and legislate to strengthen laws that prevent sexual harassment… Labor shares the
goal of businesses, workers and the wider Australian community to stamp out sexual
harassment in workplaces, and will do so while working to minimise the regulatory burden on
businesses by ensuring that any actions required of employers are reasonable and
proportionate.”

If elected, Labor says it will consult with the Workplace Sexual Harassment Council,
employers, workers, unions and lawyers to “finalise and implement stronger laws as a matter
of priority.”

WHAT’S THE DIFFERENCE?
The key difference between the parties really boils down to the level of commitment to
legislative change:

    On the one hand, Labor is promising to enact all remaining Respect@Work
    recommendations (including the federal positive duty) but will consult with stakeholders
    on the precise terms of the new laws;

In contrast, the Coalition has not committed to enacting the reforms, and is currently
    only consulting regarding whether or not the recommendations should be implemented.
    Further, the Coalition has elected not to consult on the recommendation to expressly
    prohibit sexual harassment in the Fair Work Act 2009 (Cth). The rationale for this is that
    it seeks to review the operation of the new Stop Sexual Harassment jurisdiction before
    considering further reforms to the Fair Work system.

As the countdown to the May 2022 election draws closer, it’s unlikely that this issue will go
away. In the last week a new campaign called Safety, Respect, Equity was launched which
includes demands for implementation of all of the 55 recommendations from the
Respect@Work report. That campaign is led by prominent advocates including Grace Tame,
Brittany Higgins, Julia Banks, Lucy Turnbull and Christine Holgate. This promises to keep
these issues at the forefront for the next few months.

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