“The Sex Discrimination Commissioner has come out with something that is clear, which is that sexual harassment is a workplace right, is a health and safety right, is a human right.” [??!!]
What would be more accurate and reflective of Michele O’Neil’s position is that workers have a human, health and safety, and workplace right to a workplace that is without the risk of sexual harassment. The ACTU President gets the message right in the official media release.
O’Neill urges the Morrison Government to take the final report into sexual harassment in Australian workplaces and its recommendations seriously and it should, but the signs are not good. The mainstream media coverage of the Workplace Sexual Harassment Inquiry’s report has been thin.
A joint press conference specifically on the report by the Prime Minister, Minister for Women, the Attorney-General and the Minister for Industrial Relations, would have given the report to official stamp it needs, as the Sex Discrimination Commissioner’s recommendations have broad application, and well outside the workplace confines. The government released a cursory joint media statement of the Attorney-General and the Minister for Women but a statement from the PM was warranted.
SafetyAtWorkBlog has been advised that the Government has had this final report for some time so there should have been a more coordinated and considered response especially as O’Neill pointed out that International Women’s Day was a couple of days after the report’s release.
O’Neill noted last year’s ACTU survey and the hesitance of respondents to report incident and said:
“This is why the focus of what happens has to be about change, has to be about prevention, has to be about swift access to justice.”
Her messages on prevention are a little muddy. Earlier in urging the Government to take action she said:
“We cannot wait for changes in preventing sexual harassment at work.”
Prevention of sexual harassment in workplaces and the consequent harm featured in some of the Commissioner’s public speaking but this primacy is less in the final report. Of the five new key areas mentioned on the report’s website, two address prevention”
- Primary prevention of sexual harassment through education, media and community-wide initiatives.
- Better workplace prevention and responses, which are leader-driven, victim-centred, practical and adaptable.
Primary Prevention was almost exclusively discussed in relation to activities outside of workplaces even though primary prevention through and by workplaces would offer significant opportunities for change. The report has recommended prevention largely through the public health strategy and missed out on the occupational opportunities, which sound less disruptive, at least at the moment and based on the report. The Inquiry puts a lot of attention on establishing a positive duty, see below, but OHS has had such a duty for a long time and plenty of ignorance or dismissal of that duty remains.
The Inquiry’s report is complex because the prevention of sexual harassment is complex. The Sex Discrimination Commissioner has gone the multi-disciplinary and social justice approach to prevention as sexual harassment occurs everywhere and that reality permeates Australian workplaces.
The Commissioner has made recommendations for WHS regulations to be amended to identify sexual harassment more clearly, and for the OHS regulators to develop guidance and Codes of Practice. She also acknowledged the importance of a positive duty of care that has existed in OHS laws for a long time and has recommended strongly that such as duty be imposed through revised Sex Discrimination legislation.
As with all such inquiries, recommendations can be made but it is up to the Government to decide which to accept and which to implement. This may be why the mainstream media has been so quiet – government action is more newsworthy than an agency’s recommendations.
The final report is over 900 pages and the OHS and workers’ compensation section is less than 20 pages. The change required is not going to originate through OHS legislation and the prevention of harm is going to have many more perspectives than just OHS. As an OHS professional I hoped for more but like the media, we may need to wait to see how the government officially responds to see how serious Australia takes sexual harassment.
In the meantime we may have to continue to look at legal decisions for guidance. One scenario popped up last month in a client briefing from law firm Bartier Perry. Lawyer James Mattson provides a good case summary where one judge decided that a sexual harassment policy and training was sufficient to prevent sexual harassment – the employer had “taken all reasonable steps”. The decision was appealed to the Federal Court of Australia who found the policy and training (what OHS would categorise as Administrative Controls) did not equate to “all reasonable steps”.
The National Inquiry report mentions the “all reasonable steps” matter:
The Sex Discrimination Act makes sexual harassment unlawful in certain areas of public life, including employment. Employers can be held vicariously liable for sexual harassment committed by theirpage 73
employees or agents, if they failed to take ‘all reasonable steps’ to prevent the sexual harassment from occurring.
The debate displayed in Mattson’s article over “all reasonable steps” was critical to the Sex Discrimination Commissioner’s recommendation to impose a positive duty. The Commissioner explained the benefit as shifting:
“….the burden from individuals making complaints to employers taking proactive and preventative action. As the positive duty is an ongoing duty, it shifts the emphasis from a complaints-basedpage 479
model to one where employers must continuously assess and evaluate whether they are meeting the requirements of the duty.”
Mattson wrote his article before the Inquiry’s report and its positive duty recommendation but he does offer suggestions on what employers are expected to do to reduce or prevent sexual harassment at work. Most of them are about increasing the effectiveness of policies, training and consultation. In effect, he identifies actions that would support a positive duty on sexual harassment, similar to that which has existed in OHS law for some time.