Women workers have every right to be angry and no reason to smile

This latest guest contribution on the Labour Law Down Under Blog is by Renee Burns – Research Assistant at RMIT University Law School on the ARC Linkage Project ‘Trade Union Training in Australia’. 

Grace Tame ’s refusal to smile alongside the Prime Minister has generated much discussion, including musings on politeness, civility and the appropriateness of women’s anger. As we head into the third year of the pandemic women workers, who have disproportionately suffered its effects have a lot to be angry about. On sexual harassment in the workplace women’s anger is palpable and justified in the face of government inaction. This week statements of apology were made in both houses of parliament, delivering the first of 28 recommendations contained in Kate Jenkins’ Set the Standard report. Accompanying the statements Prime Minister, Scott Morrison acknowledged ‘mistakes of the past’ and committed to ‘build safe and respectful workplaces’. This commitment rings hollow when considered alongside the Morisson government’s refusal to take positive and proactive action to address workplace sexual harassment.

The Australian Human Rights Commission (‘AHRC’) Respect@Work report was the result of an 18-month inquiry into sexual harassment at work, launched off the back of national survey results indicating an alarming one in three people had experienced workplace sexual harassment in the previous five-year period.

Respect@Work identified inequalities of power and gender, as well as the rigid adherence to gendered roles, stereotypes and expectations as fundamental drivers of sexual harassment. It sought to name these drivers and reconstruct the legislative framework around sexual harassment so as they could be addressed. Key among its recommendations were those directed at reframing Australia’s reactionary and individualistic anti-discrimination regime. Primarily these included: establishing a positive duty on employers to take reasonable and proportionate measures to eliminate sexual harassment and discrimination at work (recommendations 17, 18); and encouraging collective approaches by enabling unions and other groups to bring representative claims on behalf of victims (recommendation 23). These recommendations have not been implemented by the Morrison Government.

The measures enacted under the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) represent a piecemeal response to the Respect@Work findings which fail to address the underlying drivers of sexual harassment in the workplace. Relying on individuals to initiate actions and reinforcing a retrospective approach to sexual harassment at work, these measures offer no means to drive cultural change or prevent sexual harassment at work.

Sexual harassment ‘stop orders’

One recommendation (recommendation 29) that was implemented was the creation of ‘stop sexual harassment orders’ to operate alongside existing stop bullying orders available under the Fair Work Act (Part 6–4B). These provisions allow workers in constitutionally-covered businesses who have been sexually harassed at work to make an application to the Fair Work Commission (‘FWC’) for an order to stop sexual harassment. Where the FWC is satisfied the worker has been sexually harassed at work and there is a risk that the sexual harassment will continue, the FWC may issue any non-pecuniary order it considers appropriate to prevent the worker being sexually harassed.

Stop orders for sexual harassment provide an accessible means of early intervention. In recommending their creation the AHRC sought to increase the range of options available to victims of sexual harassment – but recognised that the sensitivities around allegations of sexual harassment would necessarily limit the utility of the provision where people may be less amenable to engaging with the process.

Although the stop orders for sexual harassment scheme is but a fledgling, its wings are already clipped. Firstly, the application of the new provisions, and that of its anti-bullying sister-scheme is limited to workers in ‘constitutionally-covered businesses’ rather than the more broadly formulated ‘national system employers’. Among others this formulation excludes workers in the state public sector, such that while private school teachers may seek redress under the scheme, teachers in government schools may not.[1]

Secondly, as recommended, the scheme was intended to work in conjunction with an explicit prohibition of sexual harassment under the Fair Work Act (Recommendation 28). Although an important inclusion, as implemented stop orders for sexual harassment perpetuate the problems of the existing system by placing the responsibility for enforcing anti-discrimination law on the individual. Operating without the support of the other Respect@Work recommendations concerning the Fair Work Act and a broader positive duty under anti-discrimination law, this provision is no more capable of effecting change than a white ribbon.

Sex Discrimination Act coverage and objects

Addressing gender and power inequalities will always be threatening to and resisted by those benefiting from the status quo. This point is crystalised in the form taken by the new objects clause of the Sex Discrimination Act 1984 (SDA). Respect@Work recommendation 16 proposed to expand the SDA objects clause incorporating the words ‘to achieve substantive equality between women and men’. Instead, the government delivered the following new objective: ‘to achieve, so far as practicable, equality of opportunity between men and women’. It could not be made clearer that this government has no intention of effecting systemic change nor any concern for substantive equality: re-ordering the genders in the objects provision would be laughable if we were not already white-hot with rage.

Recommendation 16 also called for amendments to the definitions of ‘workplace participant’ and ‘workplace’ to ensure the SDA provisions apply to all workers including volunteers, interns and the self-employed, and for the removal of existing exemptions for state public servants. As implemented the expanded reach of the SDA is an important step forward, ensuring that non-standard workers are not excluded from the protection of law. So too are amendments that make it clear the scope of the SDA extends to members of parliament, their staff, and judges at all levels of the judiciary.

Ensuring a High Court Judge is captured by the provisions of the SDA is an important development, but somewhat of a poisoned chalice for those in the unenviable position of having been sexually harassed by one. Litigating sexual harassment is an individualised, drawn out and combative process which highlights existing inequalities. Pursuing a claim of sexual harassment is often retraumatising for victims who are essentially required to perform their trauma in anticipation of, what are typically, very low damages.   Bringing an action for sexual harassment at work also carries the risk of bearing the legal costs of the other side. Recommendation 25 sought remove this barrier to litigation by introducing cost protection provisions consistent with those of the Fair Work Act (section 570), however this recommendation has not been implemented.

Recognising that sexual harassment at work is a societal problem stemming from broader gender and power inequalities requires a move away from relying solely on individuals to enforce the law. One way this can be achieved is through representative claims, where actions are taken by unions and other representative groups on behalf of individuals or groups. Representative action relieves the psychological and financial burden of individual complainants and can be used strategically to drive broader cultural change. Representative action was the subject of recommendation 23, and also has not been accepted.

While legal remedies are an important element of the law, their individual and retrospective nature is such that they do not foster broader cultural or systemic change. Sexual harassment at work is an immediate and widespread threat to the physical, psychological and financial wellbeing of Australian workers, and particularly women. Examining the broader impact, Deloitte estimated an annual cost of workplace sexual harassment to the Australian economy of $3.8 billion.

Addressing sexual harassment at work requires a commitment to addressing sexism and gender inequality within workplaces and society more broadly through proactive, preventative action. Crucial to this is adopting the Respect@Work recommendation to establish a positive duty on employers to take reasonable and proportionate measures to eliminate sexual harassment and discrimination at work. Positive duties to protect workplace health and safety are well established and supported. Refusing to enact the recommended duty and enforcement powers for the AHRC (Recommendation 18) is a refusal to genuinely address sex discrimination, gender inequality and sexual harassment at work.

When considered alongside the Morisson government’s legislative response to Respect@Work its commitments now to safe and respectful workplaces ring rather hollow.

We’re not smiling.

[1] Carol Andrades, ‘Stop the Bullying! (But First, Please Jump Through These Hoops) Navigating the Anti-Bullying Provisions of the Fair Work Act’ (2017) 23(2) Employment Law Bulletin 14, 14.