In September last year, over 19 months after the Respect@Work report was handed down, Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, which officially made sexual harassment a sackable offence and makes clearer, under the act, that harassing a person on the basis of sex is prohibited. 

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 was recently passed — and signals a significant change in focus of the Sex Discrimination Act 1984.

Multiple law firms welcomed the legislation after it was tabled in Parliament in September, including Lander & Rogers, which recently held a presentation for 300 of their clients around the country — and conducted a survey prior.

Out of the 238 respondents that were surveyed, just over half said their organisations had a standalone policy regarding sexual harassment. Of those organisations, fewer than half recalled formal workplace training on the topic.

Concerningly, only 29 per cent of respondents were aware of their organisation having undertaken a review of sexual harassment and bullying in the past two years, with almost half of all respondents not sure if an audit had taken place. However, 43 per cent of organisations had mandatory reporting requirements related to sexual harassment, with as many as 61 per cent having mechanisms for anonymous reporting.

In conversation with Lawyers Weekly, Lander & Rogers workplace relations and safety partner Sally Moten (pictured) said that in another survey conducted by the firm of approximately 350 managers, 80 per cent said they had either personally experienced or witnessed sexual harassment in their careers.

“Sadly, these figures are not surprising. However, there is hope, with community standards around sexual harassment evolving rapidly,” she said.

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“This is evidenced by increasing social dialogue about major local and international incidents, including the #MeToo movement, and recent court, media and political scandals. This shift in expectations is applying welcome pressure to provide safe and healthy work environments, without risk of sexual harassment and other psychosocial risks.” 

The study by Lander & Rogers was designed to “better understand how workplace sexual harassment is currently understood and managed by employers, the practical implications of the impending change, and to start the conversation about what needs to happen next”, according to Ms Moten.

This is particularly relevant off the back of the federal government tabling the proposed Respect@Work legislation, which includes matters to be taken into account in determining if an organisation is complying with the positive duty, including the size, nature, circumstances, resources and the practicability and costs of steps taken to comply with the positive duty.

“It is anticipated that this will be implemented in the very near future, with significant implications for organisations. In addition, in the past month, New South Wales implemented a positive duty to eliminate psychosocial hazards at work under WHS Regulations. Sexual harassment is identified by SafeWork as a psychosocial hazard,” Ms Moten explained.

“These positive duties have significant implications for all organisations large and small, private, government and not-for-profit, to proactively work to prevent sexual harassment from occurring. It is no longer sufficient for organisations to wait for complaints to be made before they act.

“The changes are so significant that they mean organisations must even protect workers, to the extent possible, from sexual harassment by third parties, such as visitors, or while at work-related events.”

The legislation has also been welcomed by community legal centres (CLCs), despite concerns over the bill potentially limiting access to justice for complainants.

While the bill has many positive aspects, CLCs have expressed concern that the proposed legislation has missed an opportunity to tackle some of the big access-to-justice challenges that prevent women from taking legal action.

The bill proposes to amend the Australian Human Rights Commission Act 1986 (Cth) to create a presumption that parties in federal discrimination matters will bear their own legal fees — but also creates provisions that give the federal courts a broad discretion to award costs in a range of circumstances, including considering the financial circumstances of parties and offers to settle matters.

Pip Davis, principal solicitor of Women’s Legal Service NSW, said earlier this month that these provisions could be potentially detrimental to complainants.

“There is an important access-to-justice aspect as to whether women are able in reality to enforce their rights,” she said in a statement.

“We think the bill misses an important opportunity to address the power imbalance experienced by working women bringing actions against their employers and the risk that if they lose, they have to pay hundreds of thousands of dollars in legal costs.”

These concerns were echoed in the evidence heard by the Senate committee in the lead-up to the legislation being introduced to Parliament — and the Senate report documents show broad support for an equal access model for costs, according to director of Kingsford Legal Centre Emma Golledge.

An “equal-access” model for costs would help protect survivors who bring actions from a costs order but would mean that they could have their legal costs paid by the other side if they win. As a result, the committee recommended that the Australian Law Reform Commission hold an inquiry into the operation of the costs provision in the bill.

Ms Golledge welcomed this recommendation but said the government should not delay in considering an equal-access model for this bill.

“An equal-access model recognises the huge disparity in resources between working women and their employers in these matters,” she said in a statement.

“It is critical that in order to effectively implement Respect@Work, we address the huge barriers to access to justice, which has the effect of sexual harassment remaining hidden and not considered by the courts. We need to end this legal silence.”

The new legislation will impose a positive duty on employers to eliminate sexual harassment in the workplace — and give the Australian Human Rights Commission (AHRC) enhanced powers to enforce this duty.

The new laws will act concurrently with work health and safety (WHS) and state-based anti-discrimination laws — and the enhanced powers of the AHRC will not commence until 12 months after the bill is passed. This delay will give employers the opportunity to understand their obligations, make any necessary changes at their workplace, and have the opportunity to consider guidance to be issued by the commission.

In the lead-up to this deadline, Ms Moten said employers should take a “risk-based approach” in order to determine which changes need to be higher on their priority list.

“In getting started, organisations should aim to understand the drivers of sexual harassment, then undertake an audit of their current situation to identify where those drivers are most prevalent,” she said.

“It’s then a matter of tailoring existing arrangements to have a suite of tools aimed at stopping sexual harassment from occurring in the workplace.”

This sentiment was echoed by Chief Justice of Western Australia Peter Quinlan, who, in his remarks to the Women in Mining and Resources Summit in September, said that “a workplace that is free from sexual harassment should be the bare minimum, not the end goal … cultivating an enriching workplace culture, characterised by trust, respect and inclusion is not simply the responsibility of a few in management, but is the responsibility of the workplace as a whole”.

To achieve this, organisations must be more proactive, with a positive duty to eliminate harassment being the bare minimum moving forward.

“Evidence suggests the prevalence of sexual harassment is increasing, not decreasing. The personal and economic cost is extensive and simply cannot continue. Existing approaches are deemed ineffective, so more must be done to eliminate sexual harassment in the workplace.

“History shows that policies and training are not enough. Organisations must adopt a proactive risk-based approach and invest the time and resources in identifying where the risks of sexual harassment are highest and then introduce tailored measures to address those risks,” Ms Moten added.  

“Practical solutions such as anonymous reporting lines, toolkits for managers when facing issues involving sexual harassment and designating trauma-trained contact people across the organisation are all important components in tackling sexual harassment in the workplace.”

And as previously reported by Lawyers Weekly, women in the legal profession have reported experiencing sexual harassment at much higher levels than the general population — which means that the Respect@Work legislation is especially relevant for lawyers, emphasised Ms Moten.

“Unfortunately, it’s common knowledge that the legal profession is among the worst affected when it comes to workplace sexual harassment. It’s been a significant focus for the industry in recent years, and the positive duty is another positive step forward in eliminating this behaviour from the workplace and the profession,” she said.

“Recent changes to extend the sexual harassment laws to the judiciary at both state and federal level is also a significant change for the legal profession.”