Legal - The road to respect: a WHS duty to eliminate sexual harassment
Queensland Teachers' Journal, Vol 126 No 6, 3 September 2021, page no.29
On 29 January 2020, the Australian Human Rights Commission released the Respect@Work: Sexual Harassment National Inquiry Report (2020) (the report). Commissioner Jenkins made 55 recommendations, aimed at reducing workplace sexual harassment.
Recommendation 17 of the report introduced a “positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible”.
In response to the report, the Australian Government released “A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces” (the roadmap). The roadmap accepted the majority of the 55 recommendations. However it did not accept Recommendation 17. The government reasoned that, under the model WHS laws, a person conducting a business or undertaking already has a positive duty to ensure all people in the workplace are not exposed to health and safety risks.
The roadmap also referred to a statement by the Sex Discrimination Commissioner, who stated that “[t]he WHS regime creates duties to take reasonably practicable steps to prevent risk to worker health and safety, and this includes the risk of sexual harassment”.
Where is the positive duty to eliminate sexual harassment found?
Section 19 of the Work Health and Safety Act 2011 (Qld) (“the WHS Act”) imposes a duty on a person conducting a business or undertaking (PCBU) to eliminate, so far as is reasonably practicable, risks to the health and safety of a worker and other people in the workplace. This duty includes:
- providing a work environment without risks to health and safety
- providing information, training, instruction or supervision to protect all people from risks to their health and safety
- consulting with health and safety representatives and workers who are likely to be directly affected by a matter relating to work health or safety.
Sexual harassment is a well-known risk to health and safety, and must be managed within all workplaces, including schools.
The Sex Discrimination Act 1984 (Cth) has not yet been amended to reflect the recommendations of the report, including recommendation 17. The Sex Discrimination Amendment (Prohibiting all Sexual Harassment) Bill 2021 aims to broaden the application of the Sex Discrimination Act to include judges and Members of Parliament.
Court raises the bar on compensation for sexual harassment and discrimination in Queensland
On 6 August, in a case decided under the Anti-Discrimination Act, the Industrial Court of Queensland set a new precedent for the state by ordering a sexual harasser and his business to pay $130,000 in general and aggravated damages, and a further sum for economic loss to his employee, after sexual harassment which spanned more than 14 months.
The case involved a casual employee in a laundry service who was subjected to serious sexual harassment by her manager, including aggressive text messages which caused the employee to fear for her safety. She reported the behaviour to the police and did not return to the workplace.
The historic award of damages brings Queensland in line with other jurisdictions where, in similar cases, damages have been awarded for some years.
In conjunction with future legislative amendments, the key to eliminating sexual harassment in the workplace is proactively changing workplace culture and behaviour. The combination of the report and the roadmap puts schools on notice that eliminating sexual harassment is a WHS duty. The damages awarded in the recent discrimination case show the serious consequences for schools who do not take up that duty proactively.