- by B Curphey
- The Guardian
- Issue #1997
The 2018 National Inquiry into Sex Harassment in Australian Workplaces, which produced the Respect @ Work Report, found that two in five women have experienced sexual harassment in Australian workplaces. One year on from the release of the report, the problem persists and has gained increasing national attention following the Brittany Higgins case, and the cases of Dyson Heydon and Peter Vickery, two senior judges, one of the High Court, and the other of the Supreme Court of Victoria.
The Respect @ Work Report concluded that:
“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.”
It included fifty-five recommendations on how to address this issue, among them that employers have a positive duty to prevent and respond to sexual harassment under the Sex Discrimination Act. This would entail:
[amending] the Sex Discrimination Act […] to provide the Commission with enforcement powers to assess compliance with the positive duty.
The positive duty to prevent sexual harassment is a well-intentioned idea, and one that should be implemented to ensure that we are using every tool at our disposal to protect workers against sexual harassment.
However, we need to stay attuned to the reality that this discrimination-based approach often falls short of real outcomes for victims of harassment. Anyone who experiences sexual harassment can make a claim in the Human Rights and Equal Opportunity Commission (HREOC), to get a determination that harassment has occurred.
Currently, the Commission lacks any real enforcement mechanisms. The truth is, discrimination law is inadequate in terms of substantive outcomes for survivors of harassment. That’s why some legal scholars and practitioners have argued that Workplace Health and Safety is a better route to tackle sexual harassment at work.
Workplace Health and Safety legislation enjoys (generally) bi-partisan support and has strong enforcement and compliance mechanisms. Sexual harassment is a work health and safety issue, and so it only makes sense to aim the full force of the Work Health and Safety Act at it.
Of course, real systemic change must empower people to speak out against sexual harassment and advocate for themselves. That is why, beyond legislation and legal avenues, there is also a desperate need to change workplace cultures which normalise sexual harassment. But systemic change like this takes time and in the interim, we should be using every tool at our disposal to fight workplace sexual harassment.
This is not to say that the discrimination mechanisms should not be strengthened and reinforced, but it is to recognise that there currently exists a strong mechanism for tackling sexual harassment, which isn’t being used to its full potential. Sexual harassment remains a work health and safety issue, it is time we treated it like one.