Wed Jun 30

Can the government get its workplace harassment laws right? Its bill is a missed opportunity

Written by Beth Gaze, Professor of Law, The University of Melbourne

It’s been over a year since Sex Discrimination Commissioner Kate Jenkins’ report on sexual harassment in the workplace in Australia, Respect@Work ^[1], was released.

After a long delay, the Morrison government published its response ^[2] to the report in April, and followed up by quietly introducing a bill ^[3] to legislate some of these changes last week.

The bill proposes changes primarily to the Sex Discrimination Act and the Fair Work Act. While some of these changes are welcome and long overdue, the bill doesn’t go nearly far enough to protect women or prevent harassment at work.

Major changes to the Sex Discrimination Act

There are three major proposed changes to the Sex Discrimination Act that focus on sexual harassment.

First, protection would be expanded to cover harassment based on a person’s sex, such as comments or actions that “seriously demean” women, in addition to sexual harassment.

Second, the time limit to make a claim under the act would be extended from six months to two years.

Third, more workers would be protected from sexual harassment beyond just direct employees and contractors. Subcontractors, labour hire workers, outworkers, trainees, unpaid work experience students and volunteers would also be included.

The sexual harassment and sex-based harassment provisions would also be extended to cover members of parliament, as well as their staff and judges at both state and federal levels for the first time. These groups are not currently subject to the Sex Discrimination Act.

State public servants would be covered under the act (joining federal public servants). Previously, they would have only been subject to state anti-discrimination laws.

Can the government get its workplace harassment laws right? Its bill is a missed opportunity

Kate Jenkins put forth 55 recommendations in her report, which she released in March 2020. Mick Tsikas/AAP

Threshold for demeaning language too high

There is much to commend in these proposed amendments, but other changes are expressed in a way that is likely to limit their scope or effect.

The extension of protections to cover sex-based harassment, such as misogynist language that demeans or degrades women, is a very important step forward. But it has not been included in the Fair Work Act changes (discussed below). Moreover, it would require a higher standard than the sexual harassment provisions to prove.

To succeed in a case involving sex-based harassment, for instance, it would be necessary to prove not only that the behaviour is offensive, humiliating or intimidating, but also that the conduct is seriously demeaning.

This unfortunately suggests sex-based harassment that is not seriously demeaning is acceptable.

Discrimination and harassment often happen through frequently repeated, small or nuanced transgressions, rather than singular, dramatic actions. A threshold of “seriously demeaning” is too high.

More workplace protections — but only to a point

The proposed changes to the Fair Work Act make clear that sexual harassment is a workplace health and safety issue, like bullying. This means sexual harassment will be treated as a form of bullying, which can be addressed through a stop order made by the Fair Work Commission.

In addition, the Fair Work Act would be amended to make clear sexual harassment falls within the definition of serious misconduct and can be a legitimate reason for dismissal from employment.

Importantly, the government rejected Jenkins’s recommendation to include language that expressly prohibits sexual harassment in the Fair Work Act.

This means a person who is subjected to sexual harassment will not be able to seek compensation under the Fair Work Act; that person would still need to bring an claim under anti-discrimination laws at the state or federal level.

Another problem is the changes to the Fair Work Act would not include the new provision for sex-based harassment. The bill does not see sex-based harassment as a workplace health and safety issue, or as serious misconduct.

Both of these omissions demonstrate an ongoing reluctance to fully integrate anti-discrimination principles into workplace law.

Jenkins’s report recommended that employers should be required to take reasonable and proportionate measures to eliminate both sexual harassment and sex-based discrimination at work, but the government has resisted this, claiming work health and safety laws are sufficient.

With such a requirement under the law, employers could be held liable — including for compensation — if they do not make sufficient efforts to prevent harassment or discrimination in their workplace.

Legal claims under anti-discrimination laws can be riskier than those under the Fair Work Act because different rules apply about paying the other side’s legal costs if you lose the case. As a result, those who are harassed at work are still being denied access to the most effective procedures to bring their claims.

Another problem is the Fair Work Act would only protect against sexual harassment while a person is “at work”.

This overlooks the use of social media outside working hours, which is now a major avenue for bullying and harassment. It also might not cover work-related harassment that occurs off-site or out of hours.

The government has introduced some significant changes in the bill, which are to be commended. But in some respects, this is a missed opportunity to fully embrace Jenkins’s report and implement comprehensive change.

The narrow drafting of this bill and, in particular, the failure to fully protect against sex-based harassment should be addressed before it is adopted.