Employers will be held legally responsible for failing to proactively take steps to prevent sexual harassment at work under a change that Australia’s sex discrimination commissioner, Dr Anna Cody, hopes shifts the burden of progress in workplaces.
The Human Rights Commission will be handed enforcement powers from Tuesday after the “positive duty” reform was introduced in 2022 as part of the Respect@Work legislation.
The positive duty requires employers to take “reasonable and proportionate” measures to eliminate – as far as possible – sex discrimination, sexual harassment, sex-based harassment and victimisation in the workplace.
Reflecting on its need, Cody told Guardian Australia there was a “heavy burden” on individuals to come forward.
Sexual harassment in the workplace was common, pervasive and harmful and Australia had “much further to go” in addressing it, she said.
Complaint numbers ‘woefully low’
Research done by the commission found that fewer than 20% of people who had experienced workplace sexual harassment had made a complaint about it.
“That’s a woefully low percentage,” Cody said.
“Relying on complainants to uphold the rights and standards that everyone should enjoy within a workplace was insufficient and it needed to be a much more proactive approach.”
Captured under the law are sexual harassment and misconduct, as well as sexist attitudes, decisions around promotions and access to overtime, according to Cody.
From this week, the commission will be able to assess complaints and take action against workplaces found to be failing in their duties. Employees, unions and other bodies will be able to make complaints to the commission via an online portal.
It was one of 55 recommendations made by Cody’s predecessor, Kate Jenkins, in the Respect@Work report that was handed to the former Coalition government in 2020.
The change requires buy-in from employers and backing in with regulation, which the commission will oversee “in the same way that we think about how any behaviour is changed where it’s entrenched”, Cody said, pointing to smoking and using seatbelts.
“Those are all behavioural changes that we have decided as a society we wanted to deal with because they caused great harm,” she said.
“In the same way, this also has created great harm.”
after newsletter promotion
But there will not be a major public awareness campaign to go alongside the positive duty reform, unlike those other harms listed by the commissioner.
“We don’t have the resources to do that,” Cody said.
“We’re focusing more on educating employers and employees directly through those resources. Running a campaign is a very expensive process.”
The federal government will hand $5.8m over four years and $1.8m annually after that to the commission for taking on the regulatory function. That will include everything from assessing complaints, educating businesses and issuing compliance notes to taking companies to the federal court.
A major part of Cody’s work will also be working with business leaders to ensure they understand their duties.
The Business Council of Australia’s chief executive, Bran Black, said members “strongly support actions that stamp out sexual harassment” and discrimination.
“Everyone deserves to feel safe in their workplace,” he said. “Business is proud to have shown strong leadership in addressing this issue but acknowledges more needs to be done.”