This article on ‘Workplace Sexual Harassment and Bullying Laws in Australia’ was written by Aditi Amarawat, an intern at Legal Upanishad.
The Australian government has significantly failed to curb the sexual harassment cases faced by employees in their work environment. The cases reached a crescendo in 2020 when it was discovered that every 1 in 3 public servants was sexually harassed in Australia. (Karp, 2021) According to the commonwealth of Australia constitution 1901, any unwelcome advances physical or vocal fall in the category of sexual harassment. Even a working environment which sexually premeditated or hostile in nature also amounts to sexual harassment.
In harassment related to the workplace, the employers will be vicariously liable for the complaints until they can prove that they took all the reasonable steps. Workplaces along with education were one of the first places recognized by legislators as a place of sexual misconduct which needed protection. This article attempts to explain the concept of sexual harassment and bullying in the workplace and the laws regulating the same in Australia.
HISTORY OF WORKPLACE SEXUAL HARASSMENT
The history of harassment in the workplace is almost similar to that of Sexual harassment in general; it was not recognized as a crime until the 1970s initially by some of the states in the south such as New South Wales and Victoria which saw harassment as a part of discrimination on the grounds of sex.
Sexual harassment was first recognized as a federal crime when it got introduced in the Equal Opportunities Act and Sexual Discrimination act 1984; both these acts make sexual harassment of any individual in any environment illegal, including work.
The sexual discrimination act 1984 was the first law that stated sexual harassment as a separate ground for complaints in workplaces and not just as another type of discrimination.
O’Callaghan v Older
It was through this landmark case in 1983 that the federal government realized a need to define and criminalize sexual harassment in workplaces.
The case was filed against the commissioner for main roads Mr. Older who allegedly sexually harassed two of his subordinates. Even though older was acquitted due to lack of evidence it was marked by the court that sexual harassment was also a form of sexual discrimination.
The judgment by Justice Mathews attempted to define sexual harassment for the first time: unwelcomed and unsolicited sexual advances by a person in power. (Mathews, 1983)
These judgments lead to an amendment in the sexual discrimination act in 1984 to include harassment in workplaces as a form of discrimination, hence, criminalizing it for the first time.
Even though this judgment was a significant step in the right direction, Justice Mathews implied the need for there to be a relation between subordinate and superior and a threat to employment for harassment.
R v EQUAL OPPORTUNITY BOARD
This landmark judgment added some important prerequisites to sexual harassment in any work environment.
The judgment by the Victorian court mentioned that the harasser need not be of a superior position they can also be a colleague of equal status.
RICHARDSON v ORACLE CORPORATION AUSTRALIA PTY LTD
This landmark judgment in 2014 by the federal court raised the ceiling for monetary compensation paid to the victim from a maximum of 18,000$ to 100,000$.
In the case the victim was sexually harassed by her partner on a project, the trial awarded the maximum compensation of 18k,
The appellant later moved to the federal court, the highest judiciary authority in Australia, for higher monetary compensation as she had to resign from her job due to the harassment. Even though most of the claims by the appellant were dismissed by the apex court it was heard that she must be paid 100,000$ as compensation for monetary loss and the psychological distress faced by the victim.
Even though many legislations on federal and state levels have criminalized sexual harassment in workplaces it is still as prevalent as ever, the Morrison government has acknowledged this national issue on multiple occasions.
SET THE STANDARD REPORT
- A report by the sex discrimination commissioner, Kate Jenkins, is being held landmark in many senses as it put forward the gritty truth regarding the sexual harassment and bullying being faced by the employees in the parliamentary departments.
- The report was an independent study into the work culture of the parliament and interviewed almost 1700 staffers in all the government departments.
- The findings of the report were “disturbing” and the harassment in the government was at “unacceptable levels” as stated by Prime Minister Scott Morrison
- According to the report, one in three staff members in the parliament experienced some kind of sexual harassment in course of their employment.
AMENDMENTS IN LEGISLATIONS
Following the backlash of the Kate Jenkins report multiple amendments were formed based on the suggestions report; the report suggested a total of 28 suggestions across 277 parliamentary offices across the country.
FAIR WORKS ACT 2009
- The proposed change will give the fair works commission executor powers to not only act but also file complaints against alleged sexual harassment in workplaces.
The amendment further makes sexual harassment a valid ground for the dismissal of an employee. (Skyring, 2020)
- To make a report of sexual harassment the prerequisites that the commission has to look into are;
- Sexual harassment has occurred
- There are future chances of such activity being repeated
SEX DISCRIMINATION ACT 1984
- The proposed changes further broaden the meaning of ‘sexual harassment ‘workplace’ and ‘worker’.
- The proposed change will also include the working sectors which were previously excluded from the protection such as workers in the judiciary and public servants.
- The amendments also hold liability towards an employer on the grounds of aiding or permitting the said act.
HUMAN RIGHTS COMMISSION ACT 1986
The act increases the time for a victim to report alleged sexual harassment in workplaces from 6 months to 24 months.
The intended amendments are expected to flatten the curve and give employees and staffers a safer work environment
- SIMPLE PROCESS the current proceedings first by a tribunal and then by the federal court on appeal make the process exhaustive and lengthy. The process can become distressing for the victim to recall all the details of the harassment all over again.
- INCLUSIVITY some departments such as defense and universities are still not a part of the harassment workplaces.
- MONETARY COMPENSATION The ceiling on the monetary compensation is still not high enough to compensate for the loss of time and money that a worker incurs due to the ongoing harassment and proceedings that follow.
Sexual harassment especially in workplaces is equivalent to an epidemic in the Oceanic country. The rape of a parliamentary staffer in the office of the defense minister of the country is reason enough to worry and ponder upon the severity of the problem and how high it goes.
The lack of female employees in corporate Australia and the formation of a ‘boys club’ culture in almost all the government departments adds to the hostility toward minorities and women in the workplace which in turn leads to harassment and threatening of the victim. (Banks, 2020)
- Shawn Skyring and Laure Kenworthy, Sexual harassment in the workplace, Mondaq, 5 November 2021, available at: https://www.mondaq.com/australia/health-safety/1128922/sexual-harassment-in-the-workplace
- Sex discrimination, Legal Services Commission South Australia, available at: https://lawhandbook.sa.gov.au/ch17s01s02s10.php
- Sexual harassment, The University of Queensland, available at: https://law.uq.edu.au/files/5957/Sexual-harassment.pdf
- Fair Work (Commonwealth Powers) Act 2009, Government of South Australia, available at: https://www.legislation.sa.gov.au/lz?path=/c/a/fair%20work%20(commonwealth%20powers)%20act%202009