Sexual harassment in the workplace has received increased public attention in recent years in the wake of the MeToo movement. The courts have also shown a willingness to award substantial damages in sexual harassment claims, recognising the significant physical and psychological impact of the harassment on the victims. For example, $170,000 was awarded to a paralegal who was subjected to persistent and threatening harassment by her boss in the case of Hill v Hughes [2019] FCCA 1267.
Sexual harassment is now seen as a key part of the broader challenge of creating a safe working environment for employees and others in the workplace. Safe Work Australia, the national policy body responsible for the development of model work health and safety legislation and associated policy, has identified sexual harassment as a workplace hazard, and has issued new guidelines on preventing and responding to sexual harassment at work.
Under the Model Work Health and Safety Act (adopted by all states and territories other than Victoria), persons conducting a business or undertaking (PCBUs) (which includes employers) have primary responsibility for the health and safety of everyone in their workplace, including visitors. PCBUs have a duty of care to ensure a safe working environment. This applies not only to traditional physical hazards, but also to actions like harassment. Therefore, action such as risk management, updating safety protocols, and training programmes apply equally to potential instances of harassment as they do other hazards.
Despite sexual harassment in employment being unlawful in Australia since 1984, it remains prevalent across all industries, including the higher education sector. In 2017, the Australian Human Rights Commission (AHRC) issued a report on sexual harassment in higher education institutions which concluded the following:
- Around half of all university students were sexually harassed on at least one occasion in 2016.
- Sexual harassment and sexual assault occurred to various degrees across all of University life.
- Only 6% of students thought that their university was doing enough to provide clear and accessible information on sexual harassment procedures.
- Alcohol, attitudes, people acting in positions of power and the nature of residential settings all contributed to harassment.
- Greater commitment from University leaders to addressing the problem was required.
Higher education institutions responded to the AHRC report by implementing stronger policies and procedures to prevent and respond to sexual harassment, and allocating additional resources to support the victims.
The extent of sexual harassment in other sectors has also been the subject of inquiry. In 2020, an investigation by the Victorian Auditor-General into the state’s local councils found that one in four council employees and councillors had been subject to sexual harassment.
Notably, the Victorian Auditor General identified a lack of systematic and comprehensive employee training on sexual harassment awareness within the local government sector as a significant contributing factor to the poor outcomes. That seems to be a common theme when it comes to issues of harassment — effective training needs to be regular and tailored to the particular environment in which it is delivered.
Employers also need to grapple with practical considerations in responding to allegations of sexual harassment. Allegations of harassment can be notoriously difficult to investigate and clarify. For example, in situations where co-workers make allegations against each other, the employer may need to consider whether to separate the workers while the allegations are being investigated. That may be difficult if the workers have joint or related responsibilities. In addition, other colleagues may be impacted by the fallout from the allegations, and the requirement to be witnesses in an investigation, and potentially, any subsequent litigation.
Allegations of workplace sexual harassment are often accompanied by allegations of bullying. In responding to such allegations, an employer will need to closely consider all the workplace policies that might relate to the incident. Industrial instruments such as enterprise agreements may also contain requirements in regard to responding to allegations of harassment and guidelines for conducting investigations into such incidents.
Investigations into complaints of sexual harassment are generally conducted by in-house Human Resources teams. Once an investigation is complete, the investigator should prepare a report with a recommended course of action and submit it to the decision-maker (usually senior management). The decision-maker must act upon the results of the investigation and be fully informed and have no actual or potential conflict of interest. Any such conflict could undermine the entire process of investigation and action.
Human Resources professionals play a central role in handling allegations of harassment. A recent review of sexual harassment in Victorian courts and tribunals by Helen Szoke recommended that HR managers should have KPIs on prevention, detection and responsiveness to sexual harassment. The review also called for in house HR departments to focus more on the complainant in the investigation process.
Conclusions
Employers have obligations under work health and safety laws to ensure that they eliminate or minimise, as far as reasonably practicable, the risk of harm arising from sexual harassment in the workplace. Among other things, this requires a combination of good policy, detailed and targeted training and good management.
The Federal and State Governments have recently proposed a series of legislative reforms to tackle sexual harassment. One of the reforms put forward by the Federal Government is to extend the availability of ‘stop bullying’ orders under the Fair Work Act (Cth) to instances of sexual harassment. At the same time, Victoria is looking at introducing a mandatory reporting regime whereby employers would be required to report cases of sexual harassment to the state’s WHS regulator. In addition, Queensland has announced that it is considering introducing legislated sexual harassment protections for workers in the state.
There is a strong possibility of further legislative change in this area. Employers would do well to anticipate such changes, review all relevant polices, and put strong and consistent systems in place to address these issues, including systems that can report these health and safety incidents to external bodies if required.
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