sexual harassment at work is still rife. These new laws would help
- Written by Sarah Ailwood, Associate Professor, School of Law, University of Wollongong
Last week, the Australian Human Rights Commission launched a new report on sexual harassment, called Speaking From Experience. It includes the voices of more than 300 victim-survivors of workplace sexual harassment from vulnerable communities.
In it, the commission calls for a new wave of robust law reform measures to protect and support victim-survivors and hold employers accountable.
This report comes five years after the 2020 Respect@Work report, which made 55 recommendations to address workplace sexual harassment. Yet, in 2022, a survey by the commission found one in three workers had experienced sexual harassment.
This new report is a watershed one, building on the work already done since 2020. So how far have we come in dealing with workplace sexual harassment? And how would new laws help?
What’s in the new report?
The Australian Human Rights Commission’s new report, Speaking From Experience, emerges from the Respect@Work recommendations.
Recommendation 27 of the Respect@Work report suggested the commission establish a way to hear historical disclosures of workplace sexual harassment. The commission then turned this recommendation into its latest release.
This report was a listening process that put victim-survivors front and centre. First Nations, migrant, LGBTQIA+, disabled and young workers were the main contributors to the report.
An example of the experiences of the contributors is a fast food worker, who said:
I know personally for me, as a queer person, I’m just exhausted […] it’s just a lot of mental energy and for nothing to happen, or for it to cause more problems, it’s just like really a deterrent…
The commission was particularly concerned with identifying what does – and what does not – help victim-survivors of workplace sexual harassment. The contributors shed light on what needs to change in the workplace and in the law.
One major theme was about non-disclosure agreements (NDAs), which are commonly used to settle workplace sexual harassment claims.
NDAs restrict who victim-survivors can speak to about their experience of workplace sexual harassment, including colleagues, friends, family and in public. Sometimes these agreements can hamper attempts to get support for the harassment.
The commission found victim-survivors are often pressured to sign NDAs in circumstances where the employer has far more power.
The commission recommended new legislation to restrict using agreements in this way.
This recommendation extends well beyond Respect@Work, which only produced best-practice guidelines. Extending the regulation is an important step forward, as subsequent research has revealed how ineffective these guidelines have been in practice.
Australia is now out of step with the United States, United Kingdom, Ireland and Canada, which have all regulated the use of NDAs after the #MeToo movement.
Working Women’s Centres are currently leading a sector-wide campaign for change, and the regulation of NDAs is underway in Victoria.
Improving the positive duty
Respect@Work introduced a positive duty on people running a business or undertaking to take reasonable and proportionate measures to eliminate sexual harassment from the workplace.
In Speaking From Experience, the commission is asking for enhanced regulatory powers to enforce the positive duty to make it more effective.
The commission is currently prevented from speaking publicly, or to other regulatory agencies, about its enforcement activities unless it has entered an “enforceable undertaking” with an organisation or applied for a Federal Court order.
This means that, 18 months after being empowered to enforce the positive duty, the commission can’t speak publicly about how it is doing so.
To be an effective regulator, it must be able to publicise its enforcement actions and share information with other agencies.
The current law actually contributes to the culture of silencing and secrecy that continues to shroud workplace sexual harassment.
Further, there are currently no civil penalties for breaching the positive duty. In Speaking From Experience, the commission found this limits the extent to which some workplace leaders will take the positive duty seriously. It found this risks turning the prevention of workplace sexual harassment into a box-ticking compliance process.
The recommendations about penalties and transparency represent an acknowledgement that the commission’s powers to create systemic and structural change to target workplace sexual harassment are too limited.
In the absence of penalties, risk to reputation – the fear that public exposure of inaction or permissive workplace cultures concerning sexual harassment – remains the greatest incentive for employers to comply with the positive duty.
But workplace sexual harassment has been unlawful for more than 30 years. The current law does little more than continue to ask employers to do the right thing.
If the commission is not given the powers it needs to effectively enforce the law, too much reliance is placed on individual complainants to take action. As the Speaking From Experience report reveals, that means victim-survivors would need to overcome massive social, economic, cultural and legal barriers.
Over to the government
Speaking From Experience is a significant moment for workplace sexual harassment law reform and policy in Australia. It continues the work that Respect@Work started and takes it in a new direction, focusing on protecting and supporting victim-survivors and accountability for employers.
The Albanese government says it’s serious about addressing workplace gender equality and the prevention of violence against women. If that’s true, it should implement the commission’s recommendations in full, and quickly.
Authors: Sarah Ailwood, Associate Professor, School of Law, University of Wollongong
