Since the passage of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Act), employers have been grappling with how they can meet their duty to proactively prevent sexual harassment.

The Act introduced a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful sex discrimination, including sexual harassment, as far as possible. What measures are ‘reasonable and proportionate’ will depend on the organisation and the risk factors that are present, but it is clear that simply responding to complaints of sexual harassment when they occur will not be sufficient.

The new President of the Australian Human Rights Commission (AHRC), Professor Rosalind Croucher, stressed that in addition to workplace leadership in this area, it is up to everyone to contribute to a positive workplace culture. In a keynote speech earlier this month, Professor Croucher said, “Change starts small and it’s up to everyone to contribute. As soon as we assume it’s for someone else to deal with, whether it’s other managers or HR or some other part of an organisation, then we have dropped the ball”.

Case study: Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107

A case referenced in Professor Croucher’s speech was that of a female employee of Sydney Water, who had agreed to be photographed for a work safety program. She was, however, unaware that her image would be used on a poster featuring the words ‘Feel Great – Lubricate!’ with a picture of her smiling and stretching upwards, appearing to point at the word ‘Lubricate!’.

The employee stated, and the court agreed, that the poster made her feel like a ‘sex object’ in the male-dominated workplace. The employee was awarded $200,000 in damages after the NSW Civil and Administrative Tribunal found the employer had contravened ss22B and 25(2)(c) of the Anti-Discrimination Act 1977 (NSW) as the poster discriminated against the employee on the ground of her sex, amounting to sexual harassment.

Referencing this case, Professor Croucher noted that opportunities to intervene and prevent the publication of the poster were not taken by leadership. However, she also noted that the employees in the workplace did not take action: “If you had been in [the employee’s] workplace, and you did not rip that poster down or stick a big black Texta over it, you may be contributing to the sexual innuendo and the sexual harassment.”

The bystander effect

The Sydney Water case highlights the difference effective bystander training can make, and how it can cultivate a culture where all employees feel responsible for the prevention of sexual harassment.

Bystanders can be people who observe sexual harassment or hear of it after the incident, and their intervention can be especially important in cases of sexual harassment where the target of the harassment may respond passively to the conduct, due to fear. Employers can create an environment that encourages bystanders to intervene either during an incident of sexual harassment or to effectively support a colleague who reports experiencing sexual harassment. Methods of encouraging interventions during incidents could include training employees on how to intervene, including role modelling so that employees can see the action in context, and demonstrating how intervention can happen individually or as a group.

Where an incident has already occurred, workplaces can encourage bystanders by offering anonymity to disclose information (where appropriate), by providing multiple channels for reporting sexual harassment, and by addressing risks of victimisation that bystanders may face.

Bystanders themselves should also be supported by the organisation, as they too may experience the negative effects of sexual harassment. Employers should consider both internal avenues of support, and external channels such as an Employee Assistance Program (EAP).

New AHRC powers come into effect in December

Professor Croucher’s comments come ahead of new regulatory powers conferred on the AHRC to investigate and enforce compliance with the positive duty, which come into effect on 12 December 2023.

From that date, the AHRC will be empowered to inquire into, and ensure compliance with, the positive duty to prevent sex discrimination, including sexual harassment. If the AHRC commences an inquiry, it must notify the employer of this, stating the grounds on which the inquiry is made, and give the employer an opportunity to respond.

If, following an inquiry, the AHRC forms the view that the employer is not complying with their positive duty, they are empowered to take a number of actions. They may notify the employer of any recommendations, give the employer a compliance notice, or enter into an enforceable undertaking with the employer. If a compliance notice is not adhered to, the President of the AHRC may apply to the Federal Court or the Federal Circuit and Family Court of Australia for an order directing the employer to comply, or for other orders the court considers appropriate.

Do you need help in meeting your proactive obligation?

Back by popular demand, our Workplace Relations team are running our Online Masterclass – Proactively Preventing Workplace Sexual Harassment on 9 November 2023. This masterclass is filled with practical guidance on how you can implement measures in your organisation and will ensure you are well prepared prior to the new AHRC powers coming into effect. Members can sign up for the free masterclass here.

If you need assistance with sexual harassment, bystander training, or have a question regarding the positive duty to prevent sexual harassment, please call our Workplace Relations Hotline on 1800 RETAIL (738 245).