In March 2020, the Australian Human Rights Commission released an extensive report on sexual harassment in the workplace in Australia, with 55 distinct recommendations on how the situation can be improved. The inquiry received input from 460 groups and victims, and found that in the last five years, one in three Australian employees have experienced sexual harassment at work.
One of the notable recommendations addressed the concept of “positive duty” with regards to sexual harassment. If implemented, the duty would shift the obligation onto employers to be more proactive with alleged sexual harassment.
“At the moment, an employer in Australia generally is liable for the conduct of any of its employees unless it can establish that it took reasonable steps to prevent the harassment [from] occurring,” said Anthony Wood, an attorney with Herbert Smith Freehills in Melbourne.
With positive duty, the employer “has an obligation much more akin to an obligation that employers face in relation to Occupational Health and Safety and workplace health and safety,” Wood said. “That is, it’s a positive duty to take reasonably practicable steps, to prevent in that case, workplace incidents or accidents or risks to health and safety.”
At the moment, the positive duty to eliminate harassment is an obligation only in the state of Victoria. The commission report recommended making this duty applicable throughout Australia.
“The current system is relying on individuals making complaints when these issues arise,” said Michael Giannopoulos, a lawyer at Anderson Gray in Melbourne. “And the commission is wanting to place more emphasis on prevention.”
Positive duty has the potential to be a controversial recommendation. Some business groups “are concerned about it imposing additional burdens on employers,” Wood said.
‘Stop Sexual Harassment Order’
The report also proposes the introduction of a “stop sexual harassment order” into the Fair Work Act. A similar previous order regarding bullying in 2013 has been successful as a way to improve workplace relationships through a tribunal.
“What’s envisaged by this recommendation in the sexual harassment report is a similar jurisdiction for sexual harassment complaints, so a quick turnaround and only available for ongoing relationships,” said Lucy Boyd, an attorney with Herbert Smith Freehills in Melbourne.
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The report also addresses nondisclosure agreements (NDAs) and does not recommend abolishing them.
Over the course of the inquiry that led to the report, the commissioners asked employers to waive nondisclosure agreements so employees would be free to speak frankly with the commission. Only a small number of large employers elected to waive the NDAs. The report generally recognizes the benefits of NDAs.
“In the U.K., they commissioned a separate report into the use of NDAs, and it came down a lot more strongly against the use of NDAs and the culture of silence they can potentially create,” Boyd said. “[That,] as well as the MeToo movement, is one of the reasons why it has been a bit different in the U.K.”
The attitude to NDAs has been more benign in Australia. “I don’t think we’ve had in Australia … the same level of criticism toward NDAs just yet,” Boyd said. The report “recognized the benefit to employers and to victims as well of NDAs in circumstances where both parties want to avoid protracted litigation and leave the matter behind them.”
Though none of the 55 recommendations in the report are currently required, there is the potential for any part of the report to become law.
Other Possible Steps
“Interestingly, the report itself notes that the overwhelming impetus for sexual harassment at work arises from inequality,” Wood noted. If employers can begin to address the systematic gender inequalities in the workplace, they will go far toward preventing sexual harassment.
Employers can adopt “a fairly broad diversity and inclusion agenda, creating a system for psychological safety, the ability for people to speak up within a business and to call out behaviors.” Wood said.
Organizations are looking at ways they can incorporate the recommendations from the report, Boyd said. “They can view sexual harassment as a safety issue and put in place reporting mechanisms.”
Katie Nadworny is a freelance writer in Istanbul.