- by Anna Pha
- The Guardian
- Issue #1957
Sex Discrimination Commissioner Kate Jenkins released the Commission’s Respect@Work report on sexual harassment in the workplace more than twelve months ago. The report sat on the then Attorney-General Peter Dutton’s desk largely ignored! It took the recent turmoil engulfing Coalition ranks in Parliament over serious allegations of rape and sexual harassment and massive March4Justice actions around Australia to generate a response.
Under considerable pressure to act, the new Attorney-General, Michaelia Cash, and Prime Minister Scott Morrison have now released their “Roadmap to Respect.” The PM, clambering to be seen as supportive of women, said they would accept all of the report’s fifty-five recommendations “wholly, in part, or in principle.” But an examination of the Roadmap reveals this is not quite true.
Sexual harassment all-pervasive
“Workplace sexual harassment is prevalent and pervasive: it occurs in every industry, in every location and at every level, in Australian workplaces. Australians, across the country, are suffering the financial, social, emotional, physical and psychological harm associated with sexual harassment. This is particularly so for women,” the report says.
This conclusion is based on a survey of experiences of workplace sexual harassment in Australia conducted by the Sex Discrimination Commission in 2018. “The 2018 National Survey provides a clear picture of the pervasiveness of sexual harassment in Australia workplaces. The results indicate that 33 per cent of people who had been in the workforce in the previous five years said they had experienced workplace sexual harassment. Women (39 per cent) were more likely than men (26 per cent) to have experienced workplace sexual harassment in this period.
“Sexual harassment is recognised as a form of gendered violence. The social norms, structures, attitudes and practices that drive violence against women are the same drivers that enable sexual harassment.
“To be effective, primary prevention needs long-term sustained effort and a high level of leadership and political will.”
“Yet most people who experience sexual harassment never report it. They fear the impact that complaining will have on their reputation, career prospects and relationships within their community or industry. Throughout the Inquiry, the Commission heard of the need to shift from the current reactive, complaints-based approach, to one which requires positive actions from employers and a focus on prevention,” the Commission notes.
This question of positive action from employers, what the report refers to as “positive duty,” is one of the key recommendations of the report.
“Amend the Sex Discrimination Act to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible,” the report says.
At present the onus is on individuals – the victims – to complain. The Report strongly recommends that this be changed, as most victims do not take action for a variety of reasons. The Commission recommends that “the Sex Discrimination Act is amended to include a positive duty requiring employers, with the possible exception of micro-businesses, to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.”
“To support the implementation of this recommendation, the Commissioner also recommends that the Sex Discrimination Act be amended to provide the Commission with enforcement powers to assess compliance with the positive duty.” These powers it sees as “key to primary prevention efforts.” [Emphasis added]
The government does not agree with this recommendation. Rather, its Roadmap says, “Noted: The government notes that under the model WHS [work health and safety] laws, persons conducting a business or undertaking, such as employers, have a duty to ensure that all persons in the workplace, including workers, are not exposed to health and safety risks, so far as is reasonably practicable. This includes the risk of being sexually harassed.”
If reliance on WHS laws were adequate, then sexual harassment would not be the problem it is in the workplace. The government would, if it had the political will and respect for women, take this key recommendation seriously and adopt it. It has neither, as its response demonstrates.
Likewise, the government’s lack of support for the Commission to be given the function of assessing compliance with the positive duty and enforcement, illustrate it is not serious in tackling sexual harassment in the workplace. This recommendation is also “Noted.”
The report recommends that the Commission should be given powers to require the giving of information; the production of documents; and the examination of witnesses with penalties applying for non-compliance, when conducting such an inquiry. The government fails to agree with this important recommendation.
“Through the Inquiry, the Commission heard about the way in which power disparities in society, as well as in the workplace, enabled sexual harassment. Overwhelmingly, the Commission heard that gender inequality was the key power disparity that drives sexual harassment. Gender inequality relates to the unequal distribution of power, resources and opportunity between men and women in society, due to prevailing societal norms and structures.”
The report notes that the nature of workplace sexual harassment has also changed over time. In particular, that women are increasingly experiencing online or technology-facilitated sexual and sex-based harassment.
“Sexual harassment,” the report says, “is not a women’s issue: it is a societal issue, which every Australian, and every Australian workplace, can contribute to addressing.
“Workplace sexual harassment is not inevitable. It is not acceptable. It is preventable.”
The report emphasises that it is “victim-focused to enhance outcomes for people experiencing harassment” and “based upon existing legal frameworks to avoid duplication, ambiguity or undue burden on employers.” “It is consistent with the Australian Government’s Deregulation Agenda of delivering more effective and efficient regulatory frameworks.”
“ILO Convention 190 provides for a broader definition of violence and harassment, which includes physical assault as well as psychological and sexual behaviours. Importantly, ILO Convention 190 includes gender-based violence in the definition of ‘violence and harassment,’ acknowledging that gender-based violence and harassment disproportionately affects women and girls,” the report points out when recommending Australia ratify it.
The government says it will “consider this recommendation as part of usual treaty processes.” It does not give a commitment, not even in principle!
A number of the recommendations call for additional funding for services such as working women’s centres, hotlines, community legal centres, Aboriginal and Torres Strait Islander Legal Services, and a range of other victim support services. The government will engage with states and consider these. Once again, no certainty. Some will be considered in the forthcoming budget where the focus will be on cutting the deficit.
However, the 2020 budget last October allocated $2.1 mil over three years to fund the establishment of the Respect@Work Council (referred to as the “Workplace Sexual Harassment Council” in the Report) and the development of appropriate educational and training materials. These are for use with young people of working age, by unions and employers, and for personnel in various bodies such as the Fair Work Commission (FWC), Fair Work Ombudsman, Safe Work Australia, and workers’ compensation bodies.
What govt agreed to
- The government indicated that it would:
- Include sexual harassment in the definition of “serious misconduct” in the Fair Work Act (FWA)
- Amend the act to include sexual harassment as a valid reason for firing someone
- Include sexual harassment in the context of a “stop bullying order” under the FWA.
- Extend the timeframe in which a complaint can be received from six to twenty-four months.
These are important steps and the government must be held to account on them.
The Roadmap indicated that MPs, judges, and state public servants would be liable for the first time for sexual harassment. This was despite the fact that Respect@Work made no such recommendation. It nonetheless is a welcome commitment.
Tackling the wider causes outside of the workplace will not be easy as they ultimately arise out of the gross inequalities and system of exploitation which defines capitalism. The cultural and social circumstances that capitalism deliberately fosters are what keep the working class divided and shore up its profits. Sexual harassment is one of the consequences of these power relationships.
The Inquiry, while not addressing the capitalist system itself, did point to the fact that not only women but minority groups are more likely to be subjected to sexual harassment.
It is important that the momentum generated by the widespread horror at the treatment of women in Parliament and the March4Justice actions be maintained. The government must not be allowed to let the Respect@Work report lie on the desk for another twelve months.