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Australian Human Rights Commission Wants More Bite On Sex Harassment

24 March, 2020

Employers should have a legal “positive duty” to take reasonable steps to eliminate sexual harassment at work, and the Fair Work Commission’s anti-bullying jurisdiction should be extended to allow workers to obtain “stop sexual harassment orders”, a landmark report recommends.

The Australian Human Rights Commission report recommends a series of changes to the Sex Discrimination Act and Fair Work Act, finding the rate of change required to prevent and respond to sexual harassment at work over the past 35 years had been disappointingly slow.

Sex Discrimination Commissioner Kate Jenkins said the legal and regulatory system was “simply no longer fit for purpose”.

She said her proposed evidence-based, victim-focused model would improve co-ordination, consistency and clarity between the anti-discrimination, employment and work health and safety legislative schemes.

“I have been devastated by the experiences of sexual harassment within workplaces I have heard about through this inquiry, the harms suffered by victims and the cost to the economy,” she said.

“However, I have also been heartened by the whole-of-community response to the national inquiry. Australia wants change.”

Under proposed amendments to the Sex Discrimination Act, she called for a “positive duty” to be placed on all employers, with the possible exception of microbusinesses, to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.

She said the current lack of a positive duty meant employers placed a higher priority on compliance with employment law and work health and safety laws than discrimination law. “This also places a heavy onus on individuals to complain,” she said.

To support the recommendation, the commission said it should be given new enforcement powers to assess employer compliance with the positive duty.

The powers might include giving the commission the ability to assess organisations’ compliance with the duty and, where appropriate, to issue compliance notices, enter enforceable undertakings and apply to court for an order requiring compliance.

Ms Jenkins said the commission should be given a broad inquiry function to investigate systemic unlawful discrimination, and powers to require the giving of information, the production of documents and the examination of witnesses.

Penalties would apply for non-compliance.

The Australian Human Rights Commission Act should also be amended to make explicit that any conduct that is an offence under section 94 of the Sex Discrimination Act could form the basis of a civil action for unlawful discrimination.

Urging changes to the federal workplace laws, Ms Jenkins said a “stop sexual harassment order” equivalent to the “stop bullying order” should be introduced into the Fair Work Act.

Minister for Women Marise Payne said the government would carefully consider the report’s recommendations.

Read the online article here.

via The Australian, 6 March 2020

Photo by Joel Filipe on Unsplash

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