Workplace sexual harassment reforms ‘unfair to employers’
Employers say they will be unfairly exposed to ‘vicarious’ liability claims in reforms to address workplace sexual harassment.
Employers say they will be unfairly exposed to “vicarious” liability claims after the Morrison government agreed to a key reform to address sexual harassment in the workplace that gives victims two years to make a complaint.
The government also faces criticism from the union movement and Sex Discrimination Commissioner Kate Jenkins after unveiling its full response to her landmark Respect@Work report, which it had been sitting on for more than a year.
Of the 55 recommendations made in the report, the government agreed to 40, agreed in-principle or in-part to six, and noted nine.
Among some of the more contentious measures, the government agreed that the Australian Human Rights Commission should have two years to terminate a complaint under the Sex Discrimination Act instead of the existing timeframe of six months.
Read the response to the Respect@Work inquiry here
Attorney-General Michaelia Cash said the extension would give victims more time to come forward, but Australian Industry Group chief executive Innes Willox said that could “place employers in the unfair position of having to defend a vicarious liability claim when relevant witnesses have left the business and evidence is no longer available”.
Australian Chamber of Commerce and Industry acting chief executive Jenny Lambert agreed, saying she did not object to the president having some level of discretion to accept late lodgements in exceptional circumstances but the timeframe must be “practicable to all involved”.
The Law Council said if a time limit must be included as a ground for termination, it should not be less than six years.
The pushback from employer groups comes as The Australian can reveal the government is seeking legal advice on whether changes it wants to make to the SDA targeting federal MPs and judges can be expanded to capture state politicians and judges.
In a move that may inflame tensions with the states, the government will consider whether it is constitutional to clarify under the act that state MPs and judges can be held personally liable for sexual harassment at work, just like their federal counterparts would be under reforms announced by Scott Morrison and Senator Cash on Thursday.
Exemptions for state public servants in the SDA will be removed.
“It is about getting everybody as much on the level playing field as possible,” the Prime Minister said. “(Sexual harassment) is not only immoral and despicable and even criminal, it denies Australians, especially women, their personal security and economic security by not being safe at work.”
After weeks of mounting pressure over the government’s handling of rape and sexual harassment claims, Mr Morrison said alleged incidents at Parliament House had only highlighted the seriousness of the challenges that Australians, particularly women, faced.
Sexual harassment will be classified as “serious misconduct” and be grounds for dismissal, while the Fair Work Commission’s power to make an order to stop bullying will be clarified so it includes sexual harassment.
“Our aim is to reduce complexity but also strengthen the national framework for addressing sexual harassment,” Senator Cash said. “You need better co-ordination between all agencies responsible for this issue in the workplace. We also need to continue to support strong preventive action. As the Prime Minister said, we need to stop this behaviour before it even commences.”
Ms Jenkins said it would be a “missed opportunity” if the government refused to require employers to take reasonable, proportionate measures to eliminate sexual harassment and discrimination in workplaces.
While she was mostly complimentary of reform committed to by the government, she was disappointed a particular recommendation was merely “noted”.
“It will be a missed opportunity to not introduce a positive duty to take reasonable and proportionate measures to eliminate sexual harassment in the Sex Discrimination Act, so I am happy to assist government with the evidence provided to the national inquiry as they further assess this recommendation,” Ms Jenkins said.
In justifying its response, the government said employers already had a duty to ensure all employees were not exposed to health and safety risks, including the risk of being sexually harassed, under the model Work Health and Safety Act.
The ACTU attacked the government for only agreeing in-part to provide the Australian Human Rights Commission with new investigative powers to inquire into systemic unlawful discrimination, including sexual harassment.
The government acknowledged there might be advantages to the AHRC having broader investigative powers “in limited circumstances” but it already could conduct investigations.
“Given the chance to do something real and significant, the Morrison government’s road map is stuck in the slow lane,” ACTU president Michele O’Neil said.
Labor’s Senate deputy leader Kristina Keneally said the government’s response “looks like a rush job” with little detail and no funding or legislation.
Mr Morrison said the financial implications of the government’s response would be included in next month’s budget and hoped a package of legislation could be put to federal parliament by July.
Council of Small Business Organisations Australia chief executive Peter Strong said the suite of changes should not create unnecessary work for his members or punish them for somebody’s poor upbringing.
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