Sexual harassment in the spotlight

Since our November article here on the Fair Work Commission’s new ‘Stop Sexual Harassment’ jurisdiction, the Federal and some State governments have announced that they will be taking steps to act on the recommendations of the Respect@Work report (the Report).

The Federal Attorney General has confirmed that the government will act on the recommendations of the Report including the implementation of a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation as far as practicable.

Additionally, a number of state governments are considering introducing a positive duty to prevent sexual harassment into state law. Specifically:

• In Victoria, the state government have pledged to reform the use of non-disclosure agreements by employers or “gag orders” in workplace sexual harassment cases. The intention of the new reform is to expressly carve out the right for an organisation to disclose (in an unidentifiable way) complaints made and how they were dealt with as well as the perpetrator’s identity.
• In Queensland, the state government anticipates adopting the Federal Government’s implementation of the proactive duty on employers. The Bill outlining the proposed changes is yet to be drafted.
• In the Northern Territory, the territory government have announced an intention to impose a positive duty on employers to prevent sexual harassment, discrimination, and victimization.

Under the current framework, those impacted by sexual harassment are relied upon to report it after the sexual harassment has occurred. If the proposed changes summarised above become law, an ongoing positive duty will shift the burden from individuals and onto their employers into taking proactive and preventative action.

In the case of Oliver v Bassari (Human Rights) [2022] VCAT 329, an employee made multiple complaints to management of sexual harassment from a male co-worker which were ignored. The employee was later sexually assaulted. It was found that the steps taken by the director having “flicked through” the company anti-harassment guidance constituted a failure to take proportionate measures which could have prevented the subsequent assault. Moreover, there was no evidence the company had educated its employees on workplace discrimination and sexual harassment issues and policies or ensured that any of them understood the contents of their 100-page electronic employee handbook. The employee was awarded $150,000 in damages.

The Fair Work Commission has also handed down its first decision under the new  stop sexual harassment jurisdiction in the matter of THDL [2021] FWC 6692. This decision has clarified that the Commission may issue a sexual harassment order in circumstances where they are satisfied that a worker has been sexually harassed at work by one or more individuals, and that there is an ongoing risk that the sexual harassment will continue.

Finally, a well-known national franchise has come into the spotlight for their adequacy in dealing with and stamping out sexual harassment in the workplace. The Victorian Human Rights Commission commenced the investigation not in response to reported incidents of sexual harassment, but to address the well-understood and concerning prevalence of sexual harassment in the retail industry.

The findings of the investigation and subsequent report, highlight that workplace sexual harassment poses a threat to all franchise workers, it is damaging to people, teams, and workplaces. It also poses a threat to the brand’s reputation. For these reasons, head franchisors should consider whether they need to make franchise workplaces safer from sexual harassment.

Along with the positive duties imposed on franchisors through the relevant legal frameworks in their state or territory, the report details ‘better practice prevention measures’ that employers may introduce to reduce and stem sexual harassment in the workplace. These include:

• Prevention plan: A plan that clearly outlines the different roles and responsibilities between the franchisor and franchisees in relation to preventing and responding to sexual harassment occurring in the network
• Guidance and training: Ensure existing training and guidance to franchise owners and franchise workers covers workplace sexual harassment and response.
• Monitoring compliance: Utilise audit tools that check the franchise owner’s compliance with workplace laws to include the franchise owner’s legal obligations to prevent and respond to sexual harassment.
• Complaint channels and response: Ensure that current channels for franchise owners and workers to report workplace sexual harassment are easily accessible and well communication.

Key takeaways for employers

The changing laws surrounding the management of sexual harassment in workplaces should serve as a reminder for employers to ensure they are both meeting their obligations and taking proactive measures to ensure their workers’ health and safety. It is imperative that employers support their own initiatives to create organisational change and to prevent sexual harassment from occurring as far as is reasonably practicable.

As businesses continue to be asked what they are doing to address sexual harassment, more employers want to know what their options are. NRA Legal specialises in the delivery of employment and work health and safety law services and work with employers develop and implement best practice workplace relations strategies to work towards managing risk in the industrial sphere. Proactive steps employers can take include:

• Engaging NRA Legal to assess current sexual harassment policies and reporting systems as well as conduct an anonymous survey revealing staff awareness of sexual harassment, and providing a report with recommendations;
• Facilitating refresher sexual harassment training in order to increase staff awareness of what sexual harassment is and the available reporting systems. NRA Legal provides both in person and online training for employers which can be tailored to suit your business’s needs; and
• Reviewing and revising sexual harassment policies to ensure they are comprehensive and up to date.

If you need assistance to proactively manage sexual harassment in your business or otherwise to respond to a complaint of sexual harassment, please contact NRA Legal for a confidential discussion on 1800 572 679.