Positive changes are ahead of us regarding workplace sexual harassment and the duty of employers.
Our new prime minister, Anthony Albanese, has agreed to implement all of the 55 recommendations from Kate Jenkins’, the Discrimination Commission, report ‘Respect@Work’ (report). The report was released in March 2020 following a National Inquiry in Sexual Harassment in Australia. The Inquiry was lead by the Australian Human Rights Commission (AHRC).
The most profound recommendation in the report is for there to be a positive duty on employers to safeguard their staff from sexual harassment in the workplace (positive duty recommendation). The other recommendations ranged from conducting a nationally representative survey every four years to provide data on sexual harassment, introducing better education and training on the issue, to amending the legislative framework that governs sexual harassment.
Positive duty recommendation
The report recommends that the Sex Discrimination Act 1984 (Cth) (SD Act) be amended to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sexual harassment. In determining what is reasonable and proportionate, the SDA Act should provide factors that should be considered, including but not limited to:
- The size of the persons business;
- The nature and circumstances of the persons business;
- The persons resources;
- The persons business and operational priorities;
- The practicality and the cost of the measure; and
- Other relevant factors and circumstances.
The report suggest the AHRC be given the power to assess compliance with the positive duty and for enforcement of same. This would allow them to investigate compliance, issue compliance notices, enter into agreements or enforceable undertakings and/or apply to the Court for an order requiring compliance.
If implemented, the positive duty would require the employer to look ahead and not simply be reactionary when complaints are made. Further, it may also impact the non-disclosure or confidentiality clauses (NDAs) placed in an agreement when a sexual harassment settlement occurs.
NDAs
Historically, NDAs have been used to silence the victim of sexual harassment to not talk about the circumstances surrounding the harassment in exchange for payment. Most agreement include releasing the employer from liability for this payment. This enables the perpetrators to continue offending, given there is little impact on them due to the presence of the NDA clause.
The report and Inquiry advocates for a new form of NDA to be used that provide confidentiality and transparency, not silencing victims. It has been suggested that any new NDA clause should:
- Only include confidentiality clauses if the victim has provided informed consent to same;
- Not preclude the victim from speaking about the matter if they choose to do so;
- Be clear on the limit of confidentiality, for instance, allowing the victim to liaise with regulators on the matter;
- Carve-out the employers right to disclose the perpetrator’s identity, where there is a legitimate interest to do so and an investigation has found that the allegations were founded;
- Carve-out the right of an employer to disclose that a complaint had been made and how it was dealt with. This way the information can be used at an executive level for the employer to be able to take action and further prevent future sexual harassment incidents.
These recommendations are essential to empowering victims, ensuring transparency and to build trust and confidence in employers to systemically investigate and eradicate sexual harassment.
Elit Lawyers is passionate about promoting Diversity, Inclusion & Equality in the legal sector. We proudly represent women in their pursuit of equality and fair treatment by calling out sexual discrimination and bullying in the workplace amid the second wave of the #MeToo movement in Australia.
Our Co-Founder and Director, Danielle Snell sits on the Law Institute of Victoria’s Diversity Committee (Sexual Harassment Working Group) and is passionate about uniting the legal profession to make a real difference for women in the legal sector.
For a confidential discussion to discuss any concerns you may have and find out more about the complaints process available to those who have experienced sexual harassment and/or bullying in the workplace, please contact Danielle Snell on 0401 812 885 or [email protected].