Here’s what a positive duty for employers to prevent sexual discrimination would look like

Sex Discrimination Commissioner Kate Jenkins told a panel at the National Summit on Women’s Safety yesterday she’s “not giving up” on having all 55 recommendations made in her landmark Respect@Work report implemented.

Of the 16 legislative and regulatory reforms that could have been adopted — with 12 separate legal amendments possible — just six made it into the final Respect at Work Amendment Bill passed last week.

Notably missing was a “positive duty” clause, where employers would have a legal obligation to prevent sexual discrimination.

But what would this positive duty look like — and how could it be implemented? 

What’s missing? 

The Respect@Work report recommended the Sex Discrimination Act be amended to force all employers, taking into consideration business’ resources, size, and circumstance, “to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible”. The report also recommended the Human Rights Commission be given powers to assess employers’ compliance to this duty. 

A positive duty already exists under workplace health and safety law but doesn’t specifically apply to discrimination. 

Jenkins wrote in her report that the lack of positive duty in the Sex Discrimination Act meant employers prioritised employment, work health and safety laws, placing a “heavy onus on individuals to complain”. 

But in its response, the government said adding in extra laws could make the system too “complex and confusing for victims and employers to navigate”.

Why is this important? 

While Australia has some of the strongest workplace health and safety laws in the world, The Australia Institute’s Centre for Future Work senior economist Alison Pennington told Crikey, enforcement is often lacking. 

“A key problem is there is severe under-resourcing for state and territory regulatory bodies like Safe Work,” she said. 

“There is a big cavern between what our workplace health and safety laws say and what happens on the ground.” 

These laws also focus on tangible safety, such as hard hats and fluoro vests, but don’t recognise the psychosocial consequences of harassment. Deunionisation of workplaces, she said, make it difficult for employees to press for discrimination issues to be addressed.

Another key issue is the lack of an easy complaints process for victims, as pointed out in Jenkins’ report. Giving power to the Commission to investigate workplaces, and to establish an easy complaints mechanism under the Sexual Discrimination Act, would push employers to see sexual harassment as a separate, serious issue, Pennington said.

“Currently we have extremely costly litigation channels.”

Pennington said for many women — who are more likely to work in insecure, low paid positions — raising harassment issues is tough and challenging their employer could lead to missing out on paid work. 

“It’s a structural disempowerment of women that creates the basis for mass disempowerment through sexual harassment, and predators know that,” she said. 

What would this look like? 

Associate Professor of Law at the University of Technology Sydney Karen O’Connell told Crikey reforms were necessary because clearly, the current laws had already failed. 

This amendment, she said, would ensure the equality sector, with the right expertise and knowledge, would oversee the important issue of sexual discrimination, instead of a sector used to looking out for physical dangers. 

“The Commission would be able to give employers a lot of help and materials to implement these policies,” she said.

Victoria already has a positive duty to employers in its equality legislation which is one of the best in the world, O’Connell said. These laws make it so a victim doesn’t have to “martyr themselves” with a complaint, and push employers to be proactive instead of reactive. 

“[Preventing sexual harassment and discrimination] is about equality, dignity and respect, so that women operate as equals in the workplace, and that’s not contemplated in the current workplace health and safety laws,” she said.

This piece was first published by Crikey.