This IWD, let’s give our urgent and undivided attention to this issue

By Courtney Robertson, Rebecca Haynes and Alexandra Grayson
Lawyers Weekly 07 March 2021

International Women’s Day celebrates the social, economic, cultural, and political achievements of women, and naturally, it also prompts an examination of what still needs to be done in order to achieve gender equality, write Courtney Robertson, Rebecca Haynes and Alexandra Grayson.

Following headline after headline telling a story of sexual harassment, and even allegations of rape, in workplaces including in our state and Federal Parliaments, and in our highest court, this International Women’s Day the issue of sexual harassment in the workplace deserves our urgent and undivided attention.

The issue is not new, nor is it wanting bright minds to dissect it and identify ways to address it.

The Australian Human Rights Commission’s (AHRC) 2018 National Survey revealed that almost two in five women have experienced sexual harassment in the workplace in the past five years.

The International Bar Association’s 2019 report, “Us Too? Bullying and Sexual Harassment in the Legal Profession” revealed that one in three female respondents had been sexually harassed in a workplace context.

It is no wonder workplaces continue to struggle to recruit, retain and promote talented women.

According to Women Lawyers’ Association of NSW (WLANSW) president Renee Bianchi, recent events have confirmed what we have long known.

“Sexual harassment is rife in the workplace.  It is yet another barrier to women’s equal participation in the workplace and must be addressed as a matter of urgency. More than ever, now is a time for individuals and organisations to show leadership on this issue by ensuring that they and their employees understand what acceptable conduct in the workplace is,” she said.

“Organisations must have robust systems in place to identify and address complaints of sexual harassment swiftly and in an appropriate way.”

In March 2020, the Sex Discrimination Commissioner, Kate Jenkins, launched “Respect@Work”, the AHRC’s report of the National Inquiry into Sexual Harassment in Australian Workplaces 2020.

The Respect@Work report highlights the need to shift from the current reactive, complaints-based approach, to one which requires positive actions from employers and a focus on prevention. Through the package of recommendations in the Respect@Work report, the AHRC proposes a new approach for government, employers and the community to better prevent and respond to sexual harassment in the workplace and provide leadership and innovation in addressing this complex and difficult issue.

The Respect@Work report is the most comprehensive of its kind, considers and provides a clear path towards addressing the issue of sexual harassment in the workplace.

As lawyers and officers of the court, we have an essential role in society to advocate and protect the rights of others. For the WLANSW, this also means agitating for change on issues that prevent women in the legal profession from equal participation in the workplace such as sexual harassment.

Many of the reforms proposed by the WLANSW were ultimately adopted by the AHRC in the Respect@Work report. Almost a year has passed with no action by the federal government having been taken to implement the recommendations of the AHRC. This is unacceptable.

The WLANSW urges the federal government to implement the recommendations in the Respect@Work report as soon as possible.

In the meantime, there are some basic principles worth noting. All employees should:

  1. Have access to regular training in sexual harassment – as well as training in bullying and workplace harassment more broadly, and discrimination – and be aware of complaints policies and procedures;
  2. Be made aware of services such as designated support persons, employment assistance programs and union delegates; and
  3. Be made aware that it is available to them to access independent complaints handling bodies such as the AHRC.

Employers should:

  1. Make complaints policies easily accessible to employees and provide regular training in sexual harassment;
  2. Conduct complaints processes in a confidential, timely and unbiased way;
  3. Use complaints processes that are victim-centred and follow trauma-informed principles;
  4. Offer counselling to victims of sexual harassment, and where possible, access to a support person;
  5. Ensure that those facilitating complaints processes are appropriately trained and have requisite expertise; and
  6. Conduct an annual audit to ascertain whether policies are being followed and complaints are being handled appropriately.

Sexual harassment – which as set out in the Sex Discrimination Act 1984 (Cth), includes any unwelcome sexual advance; unwelcome request for sexual favours; or other unwelcome conduct of a sexual nature in relation to the person harassed – is unacceptable regardless of the environment and, in particular, in the workplace.  Sexual harassment ranges from sexist jokes to displays of pornography and sexual assault.

If you have been sexually harassed, there are steps you can take to address it ranging from calling it out, to reporting it to your employer or a federal body such as the AHRC. It may also be available to you to commence legal proceedings in a tribunal or court.

Courtney Robertson is a member of the WLANSW’s executive committee and a senior lawyer in Gilbert + Tobin’s disputes and investigations team in Sydney. Alexandra Grayson is a member of the WLANSW’s executive committee and a principal lawyer who manages the employment and industrial relations practice of Maurice Blackburn’s Sydney office. Rebecca Haynes is a member of the WLANSW’s executive committee and PLT assessor at The College of Law Australia.

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