We have a great law to tackle workplace sexual harassers. Pity it’s never been used

Two important events concerning sexual harassment took place this week. Australian female-led hospitality advocacy group Sorry Not Sorry toured the United Kingdom, raising awareness of sexual harassment in the hospitality industry. Last year, its founders, along with other former staff for hospitality giant Swillhouse, reported being sexually assaulted at work, rostered alongside their assailants, pressured to take drugs, encouraged to have sex with customers, harassed, discriminated against, and their reports to management ignored.

Just days later, this masthead published an explosive exposé about the Merivale hospitality empire, alleging that its VIP customers routinely engaged in lewd and unwelcome sexualised behaviour towards its female staff. Swillhouse and Merivale have denied any wrongdoing.

Sorry Not Sorry collective on their Australian bar takeover tour to raise funds for their legal battle against former employer Swillhouse. Their campaign has extended to the UK.Credit: Samantha Wooller, supplied

In this same week, a new report by the Australian Human Rights Commission was released, highlighting the ongoing and seemingly intractable problem of sexual harassment. The problem is not confined to hospitality, but includes mining, media and the retail industries. Allegations against mining giants BHP and Rio Tinto include men urinating on women colleagues, sexual groping and masturbating in front of them.

But there is one glaring omission in the AHRC report. It is silent about what it, the relevant regulator, is doing about this endemic problem.

In late 2022, the Albanese government gave the AHRC significant responsibilities for preventing sexual harassment. It introduced a law which, for the first time, imposed a positive duty on employers to prevent sexual harassment and sex discrimination at work. At the time of its enactment, Kate Jenkins, the then-sex discrimination commissioner, hailed the positive duty law as “the single most revolutionary change that will impact sexual harassment”.

Since December 2023, the AHRC has been able to prosecute employers for failing to comply with that positive duty. To date, there has not been a single prosecution.

It would be a tragedy if the positive duty law became a “dead letter” – a law that sits on the statute books both unloved and unused. Without either a carrot or a stick to motivate them, even the most committed – or the most problematic – employers are free to ignore the laws without consequence. A law that is on the books, but able to be routinely ignored, might as well not exist.

In a time of continuing, serious allegations of sexual harassment, we need this positive duty more than ever. Yet it took an inquiry by The Sydney Morning Herald and The Age, not the regulator, to reveal the alleged conduct at Swillhouse. It is taking the dedicated efforts of the individual women who reported it to try to raise enough funds to take legal action against their former employer.

Many Australians, both professional and community-based, worked hard to deliver us the Respect@Work law reforms. Getting the law changed takes a lot of work, much of it unpaid and unthanked. Australians wrote to their MPs, worked on campaigns in their spare time, gathered in the streets and at Parliament House in the “March 4 Justice”. Increasing outrage at high-profile sexual harassment cases and personal stories of violence against women drove frustration with the law as it stood – a law that seemed to make no difference to the rates or severity of workplace harassment.

All that energy and effort should not be wasted. We needed the reforms because the system we had was not working. Sexual harassment was getting worse over time. People who were sexually harassed or discriminated against at work faced bringing an individual complaint, pitting themselves against powerful and better-resourced organisations, risking financial ruin, to address even the most systemic and brutal cases.

The lack of complaints or legal cases (only 17 per cent of sexual harassment incidents were reported, the AHRC found) demonstrated how ineffective that system was.

At the same time, employers had no explicit legal obligation to prevent sexual harassment from occurring and instead were ploughing resources into promulgating policies and compulsory training for employees – an approach to prevention that academic research had shown to be largely ineffective.

The new positive duty law was one of many important changes to the Sex Discrimination Act resulting in Australia having some of the most sophisticated sexual harassment prevention laws in the world. Instead of waiting for a person to be harassed or hurt, the law requires employers to do what they reasonably can to stop the harm occurring in the first place. How sensible is that?

But the system fails on multiple fronts. First, the AHRC was given a monopoly on enforcing the positive duty. If you combine a poorly resourced and equipped regulator tasked with addressing an endemic problem, compliance usually fails. Proper regulation demands that affected individuals, organisations such as trade unions, and a well-resourced regulator share the burden of compliance.

Only 17 per cent of sexual harassment incidents were reported.Credit: Getty Images/iStockphoto

The AHRC is not properly resourced to be a regulator. Inadequate funding means that it has few staff dedicated to the task. When the Australian Securities and Investments Commission, the Australian Competition and Consumer Commission and the Fair Work Ombudsman commence a major regulatory investigation, they make sure to publicise their activity. Just knowing that there is an active cop on the beat promotes compliance.

Bizarrely, AHRC investigations are shrouded in secrecy. To date, there has been no public indication that the AHRC is using its regulatory powers. With this lack of transparency, it is not surprising that many Australian employers seem unaware that the positive duty exists.

The #MeToo movement taught us that secrecy perpetuates sexual harassment. In this context, it is astonishing that the AHRC’s compliance work is kept in the dark. We both care about the Respect@Work laws because they are innovative and unprecedented laws that are directed at addressing a genuine, intractable problem. But the revolution they promised will not occur while the AHRC is hobbled by regressive limits on its powers.

Together, Australians built a powerful vehicle for change. We don’t want to stand on the sidelines watching it rust.

Karen O’Connell is a professor in the Faculty of Law at UTS and an expert in sex discrimination and sexual harassment. Josh Bornstein is a lawyer who has represented many women subjected to sexual harassment.

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