A patchwork of statutes operating at a federal and state level prohibit discrimination in workplaces (among other areas). These are supplemented by the Fair Work Act 2009 (Cth) and work health and safety legislation. However, there are many gaps in the protections provided by these laws.

In December 2021, the Australian Human Rights Commission (AHRC) published a report entitled Free and equal: A reform agenda for federal discrimination laws (Report). In the Report, the AHRC sets out its views on the difficulties facing discrimination laws and made some suggestions for reform.

Late last year, the Sex Discrimination Act 1984 (Cth) was amended to extend its coverage to volunteers and interns in the workplace. The AHRC wants this to be the case of the other federal discrimination statutes that outlaw discrimination on grounds of disability, age and race.

The AHRC is also pushing for laws that make unlawful indirect discrimination on grounds of family or carer responsibilities, and discrimination on the basis of an irrelevant criminal record.

Meanwhile, a Ministerial Taskforce has conveyed to the Victorian Government stakeholder views seeking changes to the Equal Opportunity Act 2010 (Vic) (EO Act) and Occupational Health & Safety Act 2004 (OHS Act) to better mitigate workplace sexual harassment.

The suggestion is to amend OHS Act to mandate reporting to WorkSafe of incidents of workplace sexual harassment. This would be consistent with Federal Government’s response to the Respect@Work report.

There are also calls for the Victorian Equal Opportunity & Human Rights Commission (VEOHRC) to be given enforcement powers to address systemic issues of sexual harassment following investigation. The VEOHRC recently conducted a comprehensive inquiry into the prevalence of sexual harassment in Ambulance Victoria.

Whichever agency is beefed up, it is recognised there is a need for regulators to monitor employer compliance with duties to eliminate sexual harassment. There also seems to be support for:

• encouraging alternative pathways to formal investigations;
• anonymous reporting;
• informal reporting linked to support services;
• extra legal protections for victims; and
• the prohibition of non-disclosure agreements except in special cases.

Keys to preventing sexual harassment in the workplace

In the meantime, the AHRC has issued a framework to assist organisations to do more to prevent workplace sexual harassment than implement policies, training and complaint-handing procedures.

The AHRC framework recommends action in the following areas to prevent sexual harassment:

• Leadership: The development and display of strong leadership, that contributes to cultures that prevent workplace sexual harassment.
• Support: Prioritising worker wellbeing and provision of support to workers, including before they make a report, as well as after they report and during any formal processes.
• Risk assessment and transparency: Greater focus on identifying and assessing risk, learning from experience and transparency – both within and outside workplaces about sexual harassment – to mitigate the risk it can pose to businesses.
• Reporting: Increasing the options available to workers to make a report of workplace sexual harassment and address barriers to reporting, and creating new ways for business owners and employers to intervene to address sexual harassment, other than launching a formal investigation. Adopting a victim-centred approach to the way investigations are conducted when a report is made can minimise unnecessary harm to workers.
• Culture: Building cultures of trust and respect that minimise the risk of sexual harassment occurring and, if it does occur, ensuring it is dealt with in a way that minimises harm to workers. This includes the role of policies and human resources practices in setting organisational culture.
• Measuring: The collection of data at a workplace level and industry level to help improve understanding of the scope and nature of the problem posed by sexual harassment. This includes understanding the prevalence, nature and impacts of workplace sexual harassment as well as the effectiveness of workplace initiatives designed to address it.
• Knowledge: New and better approaches to workplace education and training to demonstrate an employer’s commitment to addressing harassment and initiate change by developing a collective understanding of expected workplace behaviours and processes.