The Federal Government has either partly agreed or agreed in principle to all the recommendations in the Respect@Work Report, aiming to prevent and address sexual harassment in Australian workplaces. As a result of the Sex Discrimination Commissioner’s report, workplace sexual harassment will be defined as ‘serious misconduct’, and there are other likely changes to WHS and Fair Work laws.

Respect@Work: changes underway

The Government’s response to the Sex Discrimination Commissioner’s report is all about creating a new culture of respectful behaviour in Australian workplaces. The response states that it’s unacceptable for one in four men and more than one in three women to have experienced sexual harassment at work in the recent past.

The response acknowledges that the consequences of sexual harassment impose a heavy burden on individuals, their families and the Australian economy. ‘All people must be safe at work and all workplaces must be free from sexual harassment’ is the guiding principle.

Accordingly, some things are changing. Governments, industry groups, professional organisations, employers and workers all have an ongoing role to play in supporting cultural change and creating safe workplaces.

A Respect@Work Council (referred to as the ‘Workplace Sexual Harassment Council’ in the report – Recommendation 14) was established and met for the first time on 19 March 2021. Its aim is to improve coordination, consistency and clarity across key legal and regulatory frameworks, to improve prevention and response to sexual harassment.

Eight other recommendations (Recommendations 2, 9, 34, 36, 37, 40, 48 and 52) were prioritised because they provide a foundation for implementing the report’s other recommendations.

The Respect@Work website has been established to provide free, practical information and education resources for employers and workers. It offers training materials and other resources on the nature, drivers and impacts of sexual harassment as well as the rights and responsibilities of workers and employers.

Changes to WHS laws

The model WHS Regulations have been amended to define psychosocial hazards and risks and require a person conducting a business or undertaking (PCBU) to manage psychosocial risks in accordance with the management of all health and safety risks.  New regulation 55A defines psychosocial hazard to include a hazard that arises from, or relates to, a work environment or workplace interactions or behaviours where that hazard may cause psychological harm.

The Regulations also specify which matters a person must have regard to in determining appropriate control measures to implement in the workplace to eliminate or these reduce risks, so far as is reasonably practicable, including how the psychosocial hazards may interact or combine, systems of work and workplace interactions or behaviours..

The report also recommended that WHS ministers develop guidelines on sexual harassment, with a view to informing the development of a Code of Practice on sexual harassment.

Safe Work Australia has already published national guidelines on preventing workplace sexual harassment under WHS laws, and has developed a Code of practice: Managing psychosocial hazards, including sexual harassment.

The Victorian Equal Opportunity and Human Rights Commission's Guideline: Preventing and responding to workplace sexual harassment provides essential information and recommendations for small, medium and large organisations.

Changes to Fair Work laws

The unfair dismissal provisions of the Fair Work Act 2009 have been amended to clarify that sexual harassment is a form of serious misconduct and can amount to a valid reason for dismissal when determining whether a dismissal was harsh, unjust or unreasonable. A ‘stop bullying order’ may also be available in the context of sexual harassment.

Changes to other laws

The Government supports equality of opportunity and the express prohibition of sex-based harassment.

The Sex Discrimination Act 1984 (Cth) was amended in December 2022 to introduce a positive duty on employers and other PCBUs to eliminate:

  • workplace sexual harassment, sex discrimination and sex-based harassment
  • conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex, and certain acts of victimisation.

This change requires PCBUs to shift their focus to actively preventing workplace sex harassment and discrimination, rather than responding only after it occurs. The new positive duty imposes a legal obligation on employers and PCBUs to take proactive and meaningful action to prevent workplace sexual harassment, sex discrimination, sex-based harassment, and conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex and victimisation from occurring in the workplace or in connection to work.

The Sex Discrimination Act has also been amended to remove the exemption of state public servants from liability for sexual harassment in their workplace, and to ensure that anyone who causes, instructs, induces, aids or permits another person to engage in sexual harassment will be liable for what happens.

This Roadmap for Respect is intended to provide a clear and comprehensive path forward for Australia to prevent and address sexual harassment and support meaningful cultural change in our workplaces. For the full text of the Roadmap, visit the website here.