What’s in, what’s out, what’s in doubt?
Last week the Government released its Roadmap for Respect in response to the 55 recommendations of the Respect@Work Report which provided a comprehensive set of recommendations for addressing sexual harassment in the workplace.
In the Roadmap, the Government responded as follows to the 55 recommendations:
- Agreed in-principle to five recommendations (16, 25, 28, 29, 50);
- Noted nine recommendations (15, 17, 18, 23, 27, 41, 44,45, 47); and
- Agreed (in full or in part) to the balance of the 41 recommendations;
The Roadmap outlines the Government’s response to each of the recommendations in the Report and it’s reasoning for the response to them, including if they are matters for the States or the private sector to address and implement.
At the press conference on 8 April 2021, the Prime Minister advised journalists: “All 55 recommendations are either agreed either wholly, in part, or in principle, or noted whether they are directed to governments or organisations other than the Australian government, or the Government is able to achieve the intent of the recommendations through other means as set out in the report”.
Following is a closer analysis of the Roadmap drilling down on what’s particularly relevant for employers and what the proposed reforms mean in the context of the current laws and legislative frameworks across various jurisdictions. Whilst many of the recommendations that have been agreed in full, part or principle, will provide welcome change and the start of what we hope will be a positive cultural transformation for Australian workplaces, this article will also closely examine matters that are within the Federal Government’s jurisdiction that were only ‘noted’ and the implications of this response for employers and workers across Australia.
Increased clarity for employers to terminate offenders under the Fair Work Act
The Government indicated it recognises the importance of ensuring that employers are clearly empowered to dismiss perpetrators of sexual harassment when appropriate and agreed to the recommendation to amend section 387 of the Fair Work Act to clarify that sexual harassment ‘can be conduct amounting to a valid reason for dismissal when determining whether a dismissal was harsh, unjust or unreasonable’.
To put this in context, section 387 of the Fair Work Act currently contains the following provisions the Fair Work Commission (FWC) must take into account:
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
Whilst the exact wording of the provisions is not clear at this stage, the intention is to embolden employers to terminate the employment of employees who have been found to have engaged in conduct amounting to sexual harassment. Noting sexual harassment happens on a scale and with varying degrees of seriousness and the other factors the FWC must consider as noted above, employers will still be required to undertake an investigation into the conduct, determinate whether it is substantiated, consider the conduct in the context of the employee’s employment and ensure procedural fairness is afforded to employees during the disciplinary processes. The FWC will maintain ultimate discretion to determine whether a termination is harsh, unjust or unreasonable in all the circumstances of a particular case.
Clarifying sexual harassment is “valid reason” for termination is a helpful clarification point and may give employers increased confidence in proceeding with terminations and defending claims when they are before the FWC, noting the FWC has increasingly been making findings in favour of employers in these matters as outlined in the links at the end of this article.
Including Sexual Harassment in the definition of “serious misconduct”
The Government also agreed to amend the definition of ‘serious misconduct’ in the Fair Work Regulations 2009 to clarify that this type of behaviour within the workplace can justify summary dismissal (dismissal without notice).
This will mean there is no obligation to provide notice or pay notice in lieu under the National Employment Standard (NES) where findings of sexual harassment are substantiated. Whilst the maximum amount of notice under the NES is five weeks, with senior executives who could have notice periods of up to six months, this is a significant cost to organisations especially where sexual harassment has been substantiated. They are usually concerned about whether the conduct is sufficient to constitute “serious misconduct at law” or as specifically defined in the contract. When the detail of the legislation is released, we may be able to consider more closely contractual provisions to empower employers to terminate without notice in these circumstances.
Applications to FWC for orders to “Stop Sexual Harassment”
Under the Fair Work Act, workers, a term which is broadly defined to extend beyond employees, may make an urgent application to the FWC for orders to “Stop the Bullying”. If orders are made and employers or individuals to whom the orders relate breach the orders, civil penalties may apply. Matters may also be referred to state regulators for investifation.
Bullying is defined as ‘repeated unreasonable behaviours directed at any individual or group of individuals that poses a risk to health and safety’. Sexual harassment is ‘s an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances’. It does not have to been repeated.
There has for some time been intersectionality between bullying and sexual harassment that would see victims of sexual harassment conceivably seeking the orders to “stop the bullying”. Although sexual harassment would not usually fit squarely within the definition of bullying, it is not uncommon for bullying behaviours to follow unwelcome advances for example. That said, it is rare for victims of sexual harassment to apply for such orders.
The extension of the jurisdiction to allow victims to apply for “stop sexual harassment” orders will provide a more protective order for individuals to access, particularly where there is no impartial individual within the organisation to complain to, or where the organisation doesn’t have or hasn’t followed their internal policies or complaints resolution processes.
When ‘stop the bullying’ provisions were introduced into the Fair Work Act there were concerns from employers that the ‘floodgates would open’ and management discretion would forever be fettered by the FWC’s constant interference but this has not come to fruition. This is because these are \challenging applications for \workers to make whilst they are still employed and in the environment where bullying or harassment is occurring — especially where trauma is involved — and not one they can make when their employment ends. The aim of the application is to stop the bullying and now, by extension, sexual harassment of the worker. There any compensation available and no ability for the worker to continue the application if they leave the workplace.
The FWC’s ability to make orders that could result in civil penalties and referrals to the state WHS regulators for investigation, coupled with the requirement that the FWC must consider employers policies, procedures and grievance resolution/investigations in making a decision should motivate employers to get their affairs in order to avoid escalation to the FW and intervention that may follow.
No positive duty or enforcement powers for Australian Human Rights Commission (AHRC)
The Report recommended including into the Sex Discrimination Act a positive duty on all employers to ‘take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation, as far as possible’. In making this recommendation, it was observed in the Report that ‘sexual harassment has specific systemic and cultural drivers. Addressing these is key to primary prevention efforts’. To facilitate this, it was recommended the Australian Human Rights Act be amended to provide the AHRC with an enhanced inquiry function to enable it to inquire into systemic unlawful discrimination, including systemic sexual harassment.
The Report noted the current legislative framework under the Sex Discrimination Act is largely remedial in nature and places significant responsibility on individual complainants. This usually means that employer practices are often only externally scrutinised after an allegation of sexual harassment has been made and in my personal experience, more often after an employee has made a decision to leave, particularly where the allegations involve superiors that are perceived as protected by the organisation.
Further, the Report noted ‘under the current framework, the lack of a positive duty in the Sex Discrimination Act to prevent workplace sexual harassment means that employers place a higher priority on compliance with employment law and WHS laws than discrimination law.’
In its submission regarding the Report, the Law Council of Australia provided ‘a positive duty would not create undue regulatory burden. This is because employers already have responsibilities to ensure they are not held vicariously liable for sexual harassment under the Sex Discrimination Act, as well as proactive duties under Australia’s WHS laws’. It was submitted the positive duties would ‘provide duty holders with clarification as to best practice’.
To be clear, the question of whether an employer has taken ‘all reasonable steps’ to prevent sexual harassment in the workplace, is currently only a defence to vicarious liability to claims for sexual harassment by employees and agents under the Sex Discrimination Act rather than a positive duty imposed on employers. An example of all reasonable steps would include implementing and promulgating policies and procedures prohibiting sexual harassment in the workplace and appropriately managing complaints, training employers and managers regarding those policies and consistently enforcing them when breached. A positive duty would require similar actions but to be proactively taken rather than invoked and tendered as evidence of a defence if and when claim is made regarding breach of the Act.
In the Roadmap, the Government only noted the recommendation for a positive duty and amendments to the Australian Human Rights Commission Act 1986 to provide the AHRC with a broad inquiry function to inquire into systemic unlawful discrimination and the recommendation. The Government responded that ‘under the model WHS laws, persons conducting a business or undertaking, such as employers, already have a duty to ensure that all persons in the workplace, including workers, are not exposed to health and safety risks, so far as is reasonably practicable. This includes the risk of being sexually harassed’.
The not so simple overlap with state work health and safety (WHS) laws
The Report recommended that WHS ministers agree to amend the model WHS Regulation to deal with psychological health and develop guidelines on sexual harassment with a view to informing the development of a Code of Practice on sexual harassment.
A code of practice is a practical guide on how to comply with the legal duties under the WHS Act and Regulations. The WHS Act provides for the approval, variation and revocation of codes of practice by the relevant Minister (being State and Territory Ministers who are responsible for WHS laws). Codes of practice have a special status because an approved code is automatically admissible as evidence in court proceedings under the WHS Act and Regulations. Courts may have regard to a code as evidence of what is known about a hazard, risk or control and may rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.
As noted on the SWA website, Model Codes of Practice are practical guides to achieving the standards of health and safety required under the model WHS Act and Regulations. To have legal effect in a jurisdiction, a model Code of Practice must be approved as a code of practice there. To determine if a model Code of Practice has been approved in a particular jurisdiction, workers are directed to check with their local WHS regulator.
In January 2021, Safe Work Australia published the “Preventing Workplace Sexual Harassment Guide”. Whilst the Guide is comprehensive, instructive and informative, it does not have the weight of the law behind it. It is currently not formalised as a Code of Practice. Indeed Safe Work Australia is not a regulator and does not implement or enforce WHS laws.
Is this the path of most clarity and simplicity?
To develop and implement a WHS Code of Practice regarding the Prevention of Workplace Sexual Harassment, there will therefore be some work involved with the nine regulators across Australia. Even then it seems it will be a long way off a positive duty in the Federal Sex Discrimination Act that was recommended in the Report and the enforcement powers proposed to be given to the AHRC as a regulator.
The Queensland Council of Unions has today started urging its affiliates to abandon the Federal system and to alternatively prosecute sexual harassment matters solely under their respective state’s anti-discrimination and safety laws that are proposed to be strengthened. Should this approach be adopted and encouraged in various states and territories, it will cause significant disparity and inequities for workers depending of where they work and further confusion for employers in responding to complaints.
The Report found the ‘existing legal and regulatory frameworks for addressing workplace sexual harassment are complex and difficult to navigate – both for workers and employers’.
The Roadmap proposes to implement a suite of legislative and regulatory reforms to ‘reduce this complexity and strengthen our national legal frameworks’.
The Government’s key principles in the Roadmap include that everyone has a right to be safe at work; that prevention must be our focus; and simplicity and clarity makes the law easier for Australians to understand and access.
Having regard to all of the above, not only was an opportunity missed to create a positive duty and national compliance framework to address workplace sexual harassment and achieve safer, healthier and more respectful workplaces, but what has been proposed may not be the most proactive, simple and clear path for employers to navigate nationally.