Sexual Harassment Reform

Summary of key recommendations by Harmers Workplace Lawyers to the AHRC National Inquiry into Sexual Harassment in Australian Workplaces

Harmers Workplace Lawyers is a leading Australian boutique workplace law firm committed to ensuring fairness in the workplace for all workplace participants. Harmers acts for all sides, including individuals, employers, unions and employer associations.

Harmers has extensive experience in acting in sexual harassment matters, and has been involved in some of the most high profile and sensitive sexual harassment matters in recent times, including claims that have not been privy to the public.

Based on this experience and expertise, Harmers made oral and written submissions to the AHRC National Inquiry into Sexual Harassment in Australian Workplaces, and made recommendations regarding how the existing framework could be improved.

Below is a summary of our key recommendations:

1. We recommended the current ‘patchwork quilt’ of Federal and State legislation that deals with various employment-related claims, including those of sexual harassment, be reformed into a single co-ordinated system as embodied in the Australian Institute of Employment Rights’ “New Architecture Project” and modelled upon the ‘Robens’ style legislation currently providing the framework for the national model work health and safety legislation. This system would carry a high preventive emphasis built on sound notions of business governance; oblige all persons, including persons undertaking a business or undertaking, to take all reasonably practicable steps to ensure fairness of treatment; and involve the application of a “fair go all round” notion to workplace relations, safety and human rights within the unitary system. Such a system would be primarily focused in the tribunals, supported by Counsel Assisting to reduce access to justice issues, with the Courts taking a supervisory and enforcement role, with penalties available for breaches. Such a system would be supported by a single Inspectorate, with functions similar to the Fair Work Ombudsman.

In the alternative, we recommended that the existing legal framework be amended as follows:

2. We recommended that the Sex Discrimination Act 1984 (Cth) and the Evidence Act 1995 (Cth) be amended so complainants of sexual harassment can make audio or film recordings of the behaviour of perpetrators toward them in the workplace which can be used in court as evidence in appropriate circumstances.
3. We recommended the removal of the inappropriately short time limit for making a complaint to the AHRC, which requires lodgement within six months of the harassment.
4. We recommended that conciliation conferences take place within 4 weeks of the lodging of the complaint of alleged sexual harassment.
5. We recommended that the law be amended to clarify that victimisation claims can be pursued civilly.
6. We recommended that section 46PO(4) of the Australian Human Rights Commission Act (Cth) be amended so that courts may require reckless, blatant and repeat respondents to pay exemplary damages, where increasing the cost of sexual harassment damages will act as a ‘punishment’ that deters future harassment. To avoid excess litigation, the amendment could be expressly stated so that before there could be an award of exemplary damages there would have to be a finding of positive misconduct of a particularly egregious character.
7. We recommended that the Commission retain a record of the Deeds of Release or other Settlement Agreements reached following conciliation conferences between a complainant and respondent concerning sexual harassment in order for repeat offenders to be identified.
8. We recommended the legislative reform should extend to require the registration of all settlements of sexual harassment across the country with a private computer register maintained by the AHRC. The aim of this registration would be to detect repeat offenders and to prevent serial sexual predatorial activity which is currently facilitated by non-disclosure clauses in settlements.
9. We recommended the removal of the exclusion of employees of States and State Instrumentalities from the application of section 28B of the Sex Discrimination Act. This allows for State employees to be included in the same procedure for making and resolving sexual harassment complaints as non-State employees.
10. We recommended that the definition of workplace participant in section 28B be extended to include members of the board of directors and other officers of the employer corporation and related bodies corporate. This would prevent employees in senior managerial roles from exploiting their power to sexually harass subordinate employees.
11. We recommended that section 46P of the Australian Human Rights Commission Act 1986 (Cth) be amended so that the estate of a deceased person can lodge a complaint on behalf of the deceased. This is especially important where the alleged sexual harassment of the deceased contributed to their death, either through murder or suicide.

If you would like to see the full submission, please contact Harmers Workplace Lawyers on +612 9267 4322.

The Australian Human Rights Commission released its landmark report in March 2020 arising from its national inquiry into sexual harassment in Australian workplaces.
Please click here to read the Harmers client alert.