The Morrison government has finally introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 which contains its legislative response to the recommendations made in Respect@Work report, authored by Kate Jenkins.
The introduction of the Bill comes at a time when the scourge of workplace sexual harassment is rightfully gaining wide spread media coverage.
Recently, the prevalence of sexual harassment in Australia’s highest institutions has been unveiled. Just last year, allegations of sexual harassment against Justice Dyson Heydon were found to be substantiated by an inquiry conducted by the High Court. This year, the harrowing story of Brittany Higgins, the parliamentary staffer who was allegedly raped in a Federal Minister’s office, has dominated the headlines.
And last week we saw Western Australian mining company executives publicly apologise to their employees for serious sexual harassment including rape.
Despite the increasing public outcry for action to prevent sexual harassment in Australian workplaces, the measures contained in the Morrison Government’s Bill are a missed opportunity to enact meaningful change.
One of the more substantive amendments contained in the Bill is the introduction of an express provision that prohibits harassment on the basis of sex. Whilst sex-based harassment is currently unlawful, the amendments seek to reinforce that this is in fact the case. The Bill also expands the application of the Sex Discrimination Act to volunteers and self-employed workers, and clarifies that these laws apply to members of parliament, judges and their staff.
But these changes don’t go far enough.
The changes simply reinforce the ‘victim complaint’ approach, which is clearly not working given the prevalence of sexual harassment in Australian workplaces.
Currently, employers are not required to take a proactive approach to prevent and eliminate sexual harassment and this is at the heart of the failings of our current system. This was most recently highlighted in a study conducted by the Australian Council of Superannuation Investors and sex discrimination commissioner, Kate Jenkins, which found that less than 1 in 5 boards of ASX 200 companies are directly responsible for responding to and preventing sexual harassment.
The Morrison government has resisted implementing a positive duty in the Bill by relying on existing work health and safety laws, which require employers to proactively take steps to eliminate and reduce safety risks, and ought to include sexual harassment.
However, the fact of the matter is that companies are not viewing or dealing with sexual harassment as a safety issue, given the study also found that more than fifty percent of boards are not regularly discussing the issue.
The lack of accountability at the very top of organisations, demonstrates the need for a more proactive ‘prevention’ based approach which places the onus on organisations to take responsibility for what occurs in their workplaces, rather than placing the onus on traumatized employees to stand up to their harassers.
It is regrettable that the Morrison government has failed to implement the key recommendation contained in the Respect@Work report, given the effort, time and resources expended putting the report together.
This failure is particularly disappointing given the ongoing prevalence of sexual harassment in Australian workplaces, and the increasing urgency and calls to stop it.
Given the Bill fails to give effect to the most meaningful and significant recommendations of the Respect@Work report, it is likely that the Bill will be a missed opportunity to ensure the safety of Australian women in their workplaces. An opportunity that is unlikely to arise again in the near future.