R.E.S.P.E.C.T. – The Jenkins Report Spells It Out

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Workplace behaviour, particularly between the sexes, is a hot topic and a political hot potato right now, which likely means that the federal government will take actual steps to improve workers’ protection from sexual harassment.

In response to a storm of public outrage over allegations made by Brittany Higgins and other activists, the federal government commissioned an inquiry into workplace sexual harassment by the Sex Discrimination Commissioner, Kate Jenkins, who has released her findings in the Respect@Work Report.

So, How Bad Is It?
Unsurprisingly to many, the inquiry revealed that sexual harassment was pervasive in many Australian workplaces, particularly in male-dominated or hierarchised industries, and that about eighty per cent of perpetrators are men. The recourse available to victims of sexual harassment, about seventy per cent of whom are women, was found to be inadequate in many different ways. Although sexual harassment was previously prohibited under the Fair Work Act, the report found that the Act required sharpening and clarification in this area.

How Has the Morrison Government Responded?
Last September 2021, the Parliament passed the government’s response, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021. The Act:

– Defines sexual harassment as unwelcome sexual advances, propositions, or other conduct. One instance is enough, but behaviour must be reasonably likely to offend, humiliate, or intimidate the victim. Awkward invitations to dinner are still OK.
– Broadens the range of workers protected beyond just employees to include agency workers, contractors, subcontractors, apprentices, interns, out workers, work-experience students, and some volunteers.
– Clarifies that sexual harassment is a valid reason for the dismissal of a worker.
– Allows the Fair Work Commission to issue an order to a person to stop sexual harassment of a particular worker.

What Else Could Be Done?
The amendment of the Fair Work Act has begun the process, but the Respect@Work Report made other significant recommendations that have not yet been implemented, including –

– The Fair Work Act was updated to explicitly prohibit sexual harassment or allow hostile workplace action based on sex.
– Imposing a positive duty on employers to ensure that workplaces are free of harassment, compliance, and reporting requirements.
– Giving the Australian Human Rights Commission the power to conduct inquiries into systemic unlawful discrimination, including sexual harassment.
– Allowing trade unions and other representative organisations to bring an action on behalf of workers who have been sexually harassed.
– Limiting the size of possible costs orders may deter complainants from bringing legal action.

The government says it is consulting on and considering these reforms, but critics say it is unlikely to move on any of them.

What Does the Labor Opposition Say?
It being federal election season, these issues are in the game. Labor leader Anthony Albanese has committed a future Labor government to implement all these proposed reforms. A Labor government would consult with the Workplace Sexual Harassment Council and other stakeholders on further reforms to tighten workplace laws on sexual harassment.

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