On 5 March 2020, the Australian Human Rights Commission (the Commission) released its long-awaited report on sexual harassment in Australian workplaces, “Respect@Work”. The report is the culmination of an 18-month inquiry, led by Sex Discrimination Commissioner Kate Jenkins. It is comprehensive and data-driven, and concludes (amongst other things) that the current legal framework is, in the Commissioner’s words, “simply no longer fit for purpose.”
What is abundantly clear from the report is the pervasiveness of sexual harassment in Australian workplaces, and the grave impact it has on victims. The Commission identifies gender inequality as the underlying condition for sexual harassment, and that sexual harassment occurs in all industries, but is most prevalent in industries which are male-dominated (for example, construction and mining industries), hierarchical (for example, the police, medical and legal professions) and those industries where workers are exposed to a high degree of contact with third parties (such as the retail, hospitality and health care sectors). The 2018 National Survey revealed that the industries with the highest rate of sexual harassment were the information, media and telecommunications, and the arts and recreation industries.
The report makes 55 recommendations. Some of these are aimed at the existing legal and regulatory framework; others are more holistic, directed at creating change outside the workplace, implementing research initiatives, and education and training for key players, including boards and industry regulators.
Of central focus in the report is the need for a paradigm shift in the way businesses approach workplace sexual harassment. The report criticises the reactionary nature of the existing legal regime, which, the Commissioner observes, places the burden on individuals to make sexual harassment complaints and discharges employers of vicarious liability provided they can show they have taken “reasonable steps” to prevent the harassment. A key theme which stands out from the report’s recommendations is the Commission’s desire to shift responsibility back onto employers to prevent the harassment in the first place. This aligns more with the current approach to the regulation of workplace health and safety (WHS) – a concept already familiar to most employers.