AHRC to crack down on employers who fail to actively prevent workplace sexual harassment

Businesses across Australia should revisit and review their systems to protect employees against sexual harassment. That is the message after changes to the law handed the Australian Human Rights Commission extended powers of investigation and enforcement to ensure employers comply with the positive duty to eliminate sexual harassment at work. We’ll speak to a Sydney-based lawyer about the enhanced accountability employers now face.

The ‘positive duty’ on employers to prevent sexual harassment came into force in December 2022 and introduced a systemic shift in approach from responding to harm after it happens to preventing it before it occurs. Last summer, the Commission published guidance to help employers with compliance and then a few weeks ago on 12 December the Commission gained its new enforcement powers which it has made abundantly clear it will use where necessary, hence why this is now gaining traction and is in the news.

Sydney-based employment lawyer Neil Napper has commented on this in his Out-Law piece: ‘Australian employers must rethink sexual harassment protection as new law comes into force.’ He says employers should consider sexual harassment and other unlawful sex discrimination at work as a health and safety issue as well as a discrimination and employment issue to ensure their positive duty is met. He recommends employers take a “risk assessment” approach to dealing with the issue. 

So, what does he mean by that? Earlier Neil joined me by video-link from Sydney to discuss the Commission’s new powers. First question, why is this significant? 

Neil Napper: “It’s significant, Joe, because it's really giving the Human Rights Commission a lot more powers that previously it has not had and so it is able, for example, to start legal proceedings against employers who are doing the wrong thing. It also has much broader pre-litigation powers, so it can issue compliance notices, for example, requiring employers to comply with the law, and it can also enter into enforceable undertakings which are publicly available documents that are a quite powerful tool in the in the enforcement and compliance ‘kick back’ for regulators.”

Joe Glavina: “In your article, Neil, you talk about employers taking a ‘risk assessment’ approach to dealing with this issue which probably isn’t the way most HR professionals would look at this, so what’s the thinking behind that approach?” 

Neil Napper: “The reason for the risk assessment approach, Joe, is because the new laws essentially say that sexual harassment, and other forms of unlawful sex discrimination at work, are workplace health and safety matters as well as being traditionally discrimination matters, or employment matters more broadly and so if they are health and safety matters, as the legislators are telling us they are, then it requires organisations, employers, to take a work health safety approach, a risk assessment approach. So, hazard identification, risk assessment, and implementing control measures to eliminate, or minimise, the risk.”

Joe Glavina: “Can I just move on to talk about victims speaking out, Neil. In your article, you talk about having a robust data gathering investigation and reporting procedure, including a confidential and secure, possibly even anonymous, complaint tracking and monitoring system. Most firms will probably just have a grievance procedure for dealing with this sort of thing, but you’re saying that more is needed?” 

Neil Napper: “Yes, that's right, Joe. I think that’s certainly best practice from the point of view of complying with the new positive duty which requires employers to do more than just react to grievances, or to complaints, from individuals, they need to be seen to be getting onto the front foot and reviewing their systems to make sure that they are taking whatever steps are reasonably necessary to try to eliminate, or to prevent, sexual harassment occurring. So data collection and analysing that data and being informed by that data and taking steps to improve your systems are all part of that approach.”

Neil has written about this in some detail in his Out-Law article which is called: ‘Australian employers must rethink sexual harassment protection as new law comes into force.’ We have put a link to that in the transcript of this programme for you.

 LINKS
- Link to Out-Law article: ‘Australian employers must rethink sexual harassment protection as new law comes into force’