Sexual harassment must be prohibited under industrial law to drive real workplace change

sexual harassment at work

It’s a year since the stories of now-disgraced Hollywood producer Harvey Weinstein first began to hit the headlines.

The #MeToo movement spread like wildfire, fuelled by stories of lecherous bosses, creepy colleagues and lingering customers. The campaign gave us a moment of solidarity, but it also showed us despite having legislated against sexual harassment three decades ago it remains alive and well.

Before #MeToo a comfy assumption had settled in that things had improved. Sexual harassment was considered a thing of the past — a chauvinist boss in an office thick with cigarette smoke leering at the young typist or patting the bum of the tea lady.

Yet Bureau of Statistics data indicates one in two women, and one in four men, will be sexually harassed in their lifetime. And the bulk of it happens at work.

Obviously, this is a problem that disproportionately affects women, and while there are complex gender politics issues at play, I approach this problem primarily as a unionist. If we want to address sexual harassment we must treat it as a health and safety issue and explicitly outlaw it under industrial law.

The legal definition of sexual harassment has remained stable over the years. In short, it is unwelcome conduct, of a sexual nature, where it is reasonable to assume the person on the receiving end would be offended, humiliated or intimidated.

It need not necessarily be malicious behaviour, and while some claim this bans flirting, the assumption is people should be able to recognise when their attention is unwanted and the recipient is uncomfortable.

The current system puts the onus on the victim, because it is seen as an anti-discrimination issue rather than a safety issue. It is costly, slow and reactive.

The way employers typically handle complaints is informal, temporary and targeted at the immediate problem, rather than the systemic one.

Employers have no obligation to prevent their workers from being harassed. While policies, procedures and training are commonly in place, they are clearly not delivering the shift in the culture we need.

Worse still, those who complain are often victimised. An Australian Human Right Commission (AHRC) study found 43% of those who made a complaint were ostracised, victimised, ignored or coerced to resign.

Of course, most do not complain. Nor will those who witness it.

Yet if we continue to treat sexual harassment prevention as an exercise in compliance we are effectively reducing it to a meaningless gesture.

There are simple ways this can and should change.

Currently, SafeWork NSW classes bullying as a health and safety issue and refers it to Fair Work. This is not the case for sexual harassment. That means sexual harassment complaints can’t be pursued within the no-costs jurisdiction of the Fair Work Commission.

SafeWork NSW instead sends sexual harassment complaints to the AHRC, which has limited scope to investigate them. Complainants are unlikely to see a result because under anti-discrimination law there are no penalties for those who harass others. Essentially, there is little incentive for employers to take action to prevent sexual harassment.

This skews the system toward those who can afford to pay legal fees and have the strength and energy to pursue a complaint through the courts. Unions NSW is calling on the government to reform the Fair Work Act to explicitly outlaw sexual harassment.

We should also reform work health and safety legislation to explicitly include sexual harassment as a health and safety risk that employers and the regulator have an obligation to prevent and manage.

This obligation would require employers to take active and positive steps to prevent and reduce the risk of sexual harassment, firmly shifting the burden away from individuals needing to report and deal with sexual harassment.

Unions should be empowered to investigate and prosecute breaches of sexual harassment legislation. The feeling of degradation it brings to those who experience it can be pervasive and inescapable.

We no longer accept unsafe workplaces. Sexist, bigoted and degrading behaviour should be considered just as intolerable under industrial law.

What do you think? Should health and safety legislation include sexual harassment as a health and safety risk? Let us know in the comments or at [email protected]

The article was originally published on Women’s Agenda. Read the original article.

NOW READ: As claims against Don Burke continue, here’s what employers can do to stamp out sexual harassment in the workplace

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Ed Shyed
Ed Shyed
1 year ago

I agree with most of this, especially agree it should be put under each states worksafe law.

But that leads us to formal determination of what is S/H, it is vague in some respects currently, a person who puts their arm around a worker who is very upset, to re assure them, can be guilty of S/H, many relationship start out in the workplace, so if someone flirts with another, where that person is not interested, they should make it clear the attraction/attention is unwanted and if it persists, its clearly a violation.

But then we have the other problem, since people dont like involving others for fearing humiliation, how do we know they have asked that other person to cease with the inappropriate attention – record that conversation on their phone? sure, but is that in itself appropriate?

Things need to be made clear and precise, if you continue, then you deserve everything coming at you, and if that means a formal warning from your employer, or dismissal because you kept it up, I’m all for that, there just needs to be safeguards to prevent abuse.

I most strongly object to unions being given power of anything in this, since they are not a statutory authority, nor impartial, worksafe- certainly is and can impartially investigate and determine if someone needs a warning, or prosecution, if the employee doesnt feel he/she can take this up with management, which i agree with this article that most likely dont. I’m also all for worksafe prosecuting employers who it can be proved did nothing if the harassment was reported and continues without their acting.

My belief is for each case we are aware of, there are probably 1000 we dont, and a balanced solution is needed.