Understanding Respect@Work: Navigating Policies and Legislation

The Rising Issue of Workplace Sexual Harassment

Recent research reveals the increasing prevalence of sexual harassment in Australian workplaces. One in three people reported experiencing sexual harassment at work in the past five years. This issue spans across every industry and at every level, and significantly impacts individuals' emotional, physical, and psychological wellbeing. In 2018, workplace sexual harassment cost the Australian economy an estimated $3.8 billion, highlighting the financial, legal, and reputational risks for employers.

Understanding the Legislation

Work Health and Safety (WHS) Act 2011 (Cth)

The WHS Act mandates that employers eliminate or manage hazards and risks to the health and safety of workers, including both physical and psychological health. This includes the risk of sexual harassment, which must be minimised if it cannot be entirely eliminated.

Sex Discrimination Act 1984 (Cth)

This Act affirms that every individual is equal before and under the law, protecting people from discrimination on various grounds, including sex, sexual orientation, and gender identity. It imposes a positive duty on organisations to prevent unlawful conduct and empowers the AHRC to enforce compliance starting December 12, 2023.

Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022

Introduced a positive duty requiring employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual and sex-based harassment, hostile work environments, and victimisation. This amendment also grants new compliance and enforcement functions to the AHRC.

Other Relevant Legislation

Sexual harassment in the workplace is governed by multiple pieces of legislation at the Commonwealth, state, and territory levels, including work health and safety laws, discrimination and equal opportunity laws, workplace relations laws, workers' compensation laws, and criminal laws.

What Constitutes Workplace Sexual Harassment?

Under the Sex Discrimination Act 1984, workplace sexual harassment is defined as any unwelcome sexual advance, request for sexual favours, or conduct of a sexual nature that would offend, humiliate, or intimidate a reasonable person. This includes behaviour that makes the work environment uncomfortable or threatening in a sexually hostile way. Both overt forms of harassment and subtle actions, such as sexist remarks and crude language, can be equally damaging.

Duties and Compliance

WHS Duties

Employers must eliminate or minimise risks to the health and safety of workers, including the risk of sexual harassment, so far as is reasonably practicable. This duty involves creating policies, procedures, training, and supervision to address and prevent instances of sexual harassment. Employers must also consult and cooperate with workers about measures to prevent sexual harassment, fostering a proactive and inclusive approach to workplace safety.

Officer Duties

Section 27 of the WHS Act imposes a positive duty on officers to exercise ‘due diligence’ to ensure that the employer complies with its duties. This includes actively monitoring and enforcing compliance with sexual harassment policies, ensuring adequate resources and training are provided, and fostering a culture of safety and respect. Failure to exercise due diligence may attract significant personal liability for officers under the WHS Act.

Worker Duties

Workers have a duty under section 28 of the WHS Act to take reasonable care that their acts or omissions do not adversely affect the health and safety of others. This includes not acting in a manner which would put others at risk, including risks from sexual harassment. Workers must comply with any reasonable instruction given by the employer regarding workplace sexual harassment and cooperate with any reasonable policy or procedure related to it. By adhering to these duties, workers contribute to a safe and respectful workplace environment.

Duties of Other Persons

Customers and clients have a duty under section 29 of the WHS Act to take reasonable care that their acts or omissions do not adversely affect the health and safety of workers or any other persons. This includes not acting in a manner which would constitute sexual harassment. It is crucial for businesses to communicate these expectations clearly to all external parties and ensure measures are in place to address any incidents involving non-workers effectively.

Proactive Approach

Actions to Manage the Risk of Workplace Sexual Harassment

• Promote and enable a safe physical and online work environment.
• Implement diverse, respectful, and inclusive workplace behaviour policies and practices.
• Put measures in place to prevent third-party sexual harassment from customers, clients, and members of the public.
• Use information, instruction, training, and supervision to support early intervention strategies.
• Provide safe, confidential, and clear avenues for workers to report sexual harassment.
• Respond to reports quickly to minimise further risk to health and safety.
• Ensure workers are aware of their roles and responsibilities, including manager accountability, and the consequences for misconduct.
• Monitor and review the effectiveness of control measures.

Managing Risks

Employers must eliminate or minimise the health and safety risks of sexual harassment in the workplace so far as is reasonably practicable. This process is known as risk management and involves the following steps:

1. Identify the hazards and assess the associated risks.
2. Implement control measures to eliminate or minimise risks.
3. Regularly review control measures to ensure they remain effective.

Due Diligence

Under section 27 of the WHS Act, ‘due diligence’ requires officers to take a proactive role in ensuring an organization has systems and procedures in place to meet its WHS obligations. A failure to exercise due diligence may attract significant personal liability. Employers must eliminate and minimize risks to the health and safety of workers and others, including risks of sexual harassment, so far as is reasonably practicable. This involves:

• Providing workers with policies and procedures, training, and supervision to ensure instances of sexual harassment are reported without fear, shame, or ‘victim blaming.’
• Taking appropriate action to respond to and manage incidents.
• Consulting and cooperating with businesses that interact with their workers, including Health and Safety Representatives (HSRs), about measures to prevent sexual harassment in the workplace.

Consequences of Non-Compliance

Non-compliance with the Respect@Work legislation can lead to significant enforcement action by the AHRC. Businesses found in breach may face legal consequences, financial penalties, and reputational damage. The AHRC has the authority to investigate complaints, conduct inquiries, and enforce compliance through various means, including issuing compliance notices and initiating legal proceedings.

Impacts of Workplace Sexual Harassment

Economic Impacts on Workers

• Reputational damage
• Lost productivity
• Financial loss

Economic Impacts on Employers

• Lost productivity
• Staff turnover
• Reputational damage
• Litigation
• Workers' compensation payments

Physical and Psychological Impacts

• Feelings of isolation, social isolation, or family dislocation
• Loss of confidence and withdrawal
• Physical injuries resulting from assault
• Depression, anxiety, and stress
• Post-traumatic stress disorder
• Illness such as cardiovascular disease, musculoskeletal disorders, immune deficiency, and gastrointestinal disorders
• Self-harm or suicide

Conclusion

Respect@Work legislation is a crucial step towards creating safer, healthier, and more respectful workplaces in Australia. By understanding and complying with these regulations, businesses can protect their employees, mitigate risks, and foster a positive work environment. Employers must take proactive measures to eliminate harassment and fulfil their legal and ethical obligations to ensure the wellbeing of their workforce.