The Australian Human Rights Commission has recommended that employers face an obligation to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation “as far as possible”.
The positive duty on employers is one of 55 recommendations from the commission’s landmark sexual harassment at work inquiry conducted by the sex discrimination commissioner, Kate Jenkins, which was released in Canberra on Thursday.
The report also recommends that liability for sexual harassment be extended to those who aid or permit another person to sexually harass a person. Jenkins told reporters in Canberra some employers were already taking actions consistent with a positive duty and the report “gives much better guidance on what that would be”.
“I think employers as a general have been very well-intentioned about preventing sexual harassment,” she said.
The report proposes a new regulatory model recognising the right of workers to be free from sexual harassment as a human right, a workplace right and a safety right. It proposes a government-funded Workplace Sexual Harassment Council, chaired by the sex discrimination commissioner.
It says the Sex Discrimination Act should be amended to create new enforcement powers to ensure compliance with the proposed positive duty on employers, and it proposes new enhanced inquiry functions for the commission allowing it to inquire into systemic unlawful discrimination, including systemic sexual harassment.
Other proposed changes to legislation include making the objects of the Sex Discrimination Act include achieving substantive equality, and changing the definitions of workplace participant and workplace to cover all people in work, whether it is paid or unpaid.
The inquiry also recommends making sure public servants are covered by the Sex Discrimination Act; expressly prohibiting sex-based harassment in the legislation; and prohibiting the creation or facilitation of environments that are intimidating, hostile, humiliating or offensive on the basis of sex.
The inquiry, strongly supported by the then minister for women, Kelly O’Dwyer, was triggered by revelations associated with the #MeToo movement.
Research by the commission in 2018 found one in three people had experienced sexual harassment at work in the past five years – which was a significant increase in the prevalence rate recorded by previous surveys. That work found 71% of Australians had been sexually harassed at some point in their lifetimes, with more than four in five (85%) of Australian women and more than half (56%) of Australian men over the age of 15 experiencing the behaviour.
Jenkins said on Thursday the message that came consistently through the inquiry was “workplace sexual harassment is pervasive”.
“It occurs in every industry, in every location and at every level,” the commissioner said. “This is not simply the story of a few bad apples. Women are still most at risk, but we also heard from men who’d been harassed at work.
“Young people under the age of 30 are at the highest risk, as well as LGBTQI workers, workers with a disability, Aboriginal and Torres Strait Islander workers and migrant workers.
“We also now understand that some industries and environments create a higher risk of sexual harassment. We heard that gender inequality is the key power disparity that drives sexual harassment, along with other cultural and systemic factors.”
The recommendations were backed by a coalition of groups in the legal, health, community, family violence, business and union sectors. The Power to Prevent coalition called on the Morrison government to provide immediate support.
Our Watch congratulated the commission on the inquiry. The Our Watch chief executive, Patty Kinnersly, also urged the government to act on all the recommendations as a matter of urgency given the prevalence of sexual harassment across the Australian workforce.
“Sexual harassment is part of a broad spectrum of violence against women, and like other forms of violence against women, it needs a substantial and sustained effort to eradicate it,” Kinnersly said.
Business was more muted. The Ai Group welcomed the report in the broad but argued the legal changes raised complex issues that “will require careful consideration, given that there are numerous existing federal and state laws of relevance to the issues”.
“What is clear, is that the existing laws are far too complex and need to be simplified,” said the Ai group’s chief executive, Innes Willox.