Jump to Share article Share to Facebook Share to Twitter Share to LinkedIn Email Share link via email Jump to heading Late last month, the Australian Human Rights Commission (AHRC) concluded an innovative and important project championed by victim-survivors of workplace sexual harassment and culminating in a report titled Speaking from Experience: What needs to change to address workplace sexual harassment (Report). The project involved talking to over 300 victim-survivors of workplace sexual harassment from diverse backgrounds and often experiencing intersecting discrimination and disadvantage in other forms. The participants provided their views on what is helpful and not helpful when it comes to workplace sexual harassment and invaluable insights into the systemic barriers faced by workers from marginalised communities. The participants’ ideas and insights informed a set of recommendations – priorities for action to reduce prevalence and improve response to workplace sexual harassment in Australia. The Report reveals that, despite the initial tranche of reforms that followed the landmark Respect@Work report in 2020, there is still more work to be done – not just by lawmakers, but also by community organisations and services, workplaces, and within the community – to eliminate workplace sexual harassment in Australia. The report made eleven recommendations calling for policy and legislative reform, which Circle Green whole-heartedly endorses. This blog-post highlights the themes and some key recommendations from the report. Prevention is key – reducing barriers to information and safety We are pleased to see that there was a strong focus on prevention and access to justice in the AHRC’s recommendations. At Circle Green, we believe that the value of prevention strategies including community education cannot be underestimated. Every day we see the harm that workplace sexual harassment can do, and the compounding trauma caused by challenges navigating a complex and intimidating justice system. The AHRC heard from contributors that, consistent with the findings from the AHRC’s Time for Respect report in 2022, workplace sexual harassment: often occurs where there are intersecting forms of discrimination or disadvantage; and is generally about gender and power dynamics – not sexual attraction. It is clear that marginalised workers continue to be disproportionately targeted by workplace sexual harassment due to the complex interaction of attitudes, systems and structures in society and workplaces that entrench and foster inequality. That is – harassers often use their power to sexually harass people at work, and therefore workers who are vulnerable due to intersecting discrimination or disadvantage are more likely to be targeted. Information is key to prevention -Recommendations 1 and 2: reduce barriers to information, by ensuring specialist organisations are funded to deliver accessible, culturally appropriate, and trauma-informed education; and delivering a national media campaign led by the AHRC to drive behavioural and cultural change on workplace sexual harassment by building awareness, promoting prevention, and encouraging trauma and gendered violence informed action. -Recommendation 4: Amend the Workplace Gender Equality Act 2012 (Cth) to drive safer, more inclusive workplaces by requiring data collection on the experiences of workers with disability and those from LGBTIQA+, First Nations, and culturally and racially marginalised backgrounds. -Recommendation 5: Strengthen the safety and wellbeing of children and young people at work by conducting a comprehensive review to identify and address issues, and embed workplace sexual harassment education into respectful relationships and consent education in all high schools. Additionally, the AHRC calls for funding to conduct the sixth National Survey on Sexual Harassment in Australian Workplaces in 2026 (Recommendation 3), and for an evaluation of the progress and effectiveness of all the Respect@Work recommendation (Recommendation 7). Access to support and justice is crucial Emphasis was placed the need for a code of conduct related to trauma, violence, and culturally safe responses to workplace sexual harassment in order to reduce harm during the reporting process and to build greater trust in complaint systems. The AHRC recommended that national guidance on trauma and violence-informed responses should be updated (led by the AHRC with government support) (Recommendation 9), and called for resourcing organisations such as the Centre for Innovative Justice to expand trauma, violence, and culturally informed responses to workplace sexual harassment (Recommendation 10). Legislative change isn’t the whole solution, but some is required Circle Green routinely engages in law reform efforts to address legislative and policy gaps and barriers that affect our clients. The AHRC recommended three key reforms to address existing gaps in workplace sexual harassment and discrimination protections. Improve safety and access to justice for migrant and refugee workers Recommendation 6 focusses on the particular fears migrant and refugee workers experience that prevent them from highlighting issues in the workplace. Chief among these is a fear of deportation or loss of visa status. The Migrant Justice Visa (or the Workplace Justice Visa) is a world-first temporary visa that enables migrants with workplace law issues to stay in Australia whilst they enforce their workplace rights. Circle Green welcomed the introduction of the Workplace Justice Visa reform, and we continue see it as a big step forward in addressing migrant worker exploitation in Australia. However, as the Report states, only Accredited Third-Party Certifiers (ATPs) can assist workers to obtain the Workplace Justice Visa. Out of the list of ATPs across Australia, there are only two community legal centres, and two specialist legal centres – and none of these centres are in WA. The AHRC recommends that the list of approved accreditors for the Migrant Justice Visa should be expanded to include more legal services, including community legal centres, legal aid commissions and Working Women’s Centres. Circle Green has long been advocating to be accredited as an APT and wholeheartedly supports the AHRC’s recommendation in this regard. Limit use of non-disclosure agreements (NDAs) Recommendation 8 calls for increased workplace transparency and protection of workers’ rights by: – amending the Sex Discrimination Act 1984 (Cth) (SD Act) and relevant industrial laws to restrict the use of confidentiality and non-disclosure agreements in workplace sexual harassment cases; and – resourcing the Australian Human Rights Commission in the interim to update the Respect@Work Guidelines on non-disclosure and confidentiality agreements. Recommendation 38 of the Respect@Work report led to the publication of the Guidelines on the use of confidentiality clauses in the resolution of workplace sexual harassment complaints (NDA Guidelines). However, the research report by Sharmilla Bargon and Regina Featherstone, Let’s talk about confidentiality: NDA use in sexual harassment settlements since the Respect@Work Report, revealed that the NDA Guidelines are having limited effect in practice. We wrote about some key concerns we have about NDAs in this previous article. It is time that lawmakers in Australia consider the harmful impact NDAs have particularly in the context of workplace sexual harassment, and restrict their use accordingly. Australia has the opportunity to count itself among world leaders such as the United Kingdom, Ireland, Canda, and the United States. All introduced some form of legislative regulation to restrict the use of NDAs in sexual harassment and discrimination settlements. Give the Positive Duty teeth Recommendation 11 focusses on strengthening employer accountability for preventing workplace sexual harassment by: -amending section 49 of the Australian Human Rights Commission Act 1986 (Cth) to enable better information sharing between regulators; and -introducing civil penalties for breaches of the Positive Duty under the Sex Discrimination Act 1984 (Cth). The Positive Duty was a introduced to the SD Act as part of the tranche of Respect@Work reforms, and it places a duty on employers/people running a business or undertaking to take reasonable and proportionate measures to eliminate sexual harassment from the workplace. Since December 2023 the AHRC has been able to enforce compliance with the Positive Duty in some limited ways, but it is still unable to seek pecuniary penalties for breach. Legislation currently also limits the AHRC’s ability to speak publicly or to other regulatory agencies about any enforcement activities, including in relation to the Positive Duty in the SD Act. One may therefore question the effectiveness of the Positive Duty to hold employers are accountable. We support the AHRC’s call for expanded information sharing and enforcement powers because breach of the positive duty will carry more tangible consequences that will incentivise compliance, and the AHRC and related agencies’ enforcement activities will be more effective if they can coordinate and share data about their investigations. Conclusion The Report is a valuable and insightful resource for employers, support agencies and policy makers and we thank the AHRC for producing it. Let the voices of the brave contributors be heard, valued and a positive force for change.
