Respect@Work: Australian Government consults on positive duty to prevent sexual harassment

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.

Read our updated article here

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.