A new report has called on the government to crack down on the use of nondisclosure agreements in workplace sexual harassment cases, along with penalties for any employers who fail to take reasonable steps to eliminate the issue.
Published on Wednesday, the Australian Human Rights Commission’s Speaking from Experience report has shared 11 key recommendations for organisations towards combating workplace sexual harassment.
It followed consultations with over 300 victim-survivors from diverse and marginalised backgrounds, including LGBTQ+ workers, migrants and refugees, young people, First Nations people, and people with a disability.
Sharing their experiences, contributors of the report described situations when their workplaces backed the harasser — sometimes even funding their legal support — or where the harasser was able to keep their job, while the victim ended up having to leave.
One contributor proposed measures like an emergency payment for those who lose their job as a result of making a complaint, noting “there’s no real processes in place to keep women safe financially”.
Another put forward the ability to take time off after reporting sexual assault, stating “it doesn’t matter if I’m casual or not, give me time off because I’m not in a mental space”.
In its report, the commission has proposed limiting the use of confidentiality and non-disclosure agreements (except if the person who was sexually harassed wants confidentiality).
“Strict NDAs continue to be overused in the resolution of sexual harassment matters,” the report said.
“Although NDAs mostly require all parties (employer, victim-survivor, and the perpetrator) to maintain confidentiality, the agreement is almost always requested by the perpetrator or employer as a form of protection, not by the person who has been harassed.”
Another key recommendation is to amend the Australian Human Rights Commission Act 1986 to include penalties for employers who breach their positive duty, a.k.a their legal obligation to eliminate all forms of sexual discrimination, workplace sexual harassment, sex based harassment and victimisation.
“We are really excited about that as a reform because it so radically changes the onus from having to be on the complainant, onto the employer or business. It’s a real game changer,” Sex Discrimination commissioner Anna Cody told the Australian Financial Review.
“Rather than it being an adversarial process of one person against the other, it’s recognising that if you want to maintain the relationships between people, that sometimes you need other approaches.”
The commission has also proposed increased funding for specialist support services to deliver “accessible and culturally appropriate education and outreach on workplace sexual harassment” and a national media campaign to drive behavioural and cultural change.
In a move to strengthen the safety and wellbeing of young people at work, it has recommended a review into awards, legislation, and policy for this cohort, and embedding education around workplace sexual harassment into relationships and consent education in high schools.
“Workers shouldn’t have to choose between their safety and their livelihood,” Cody said.
“Workplace sexual harassment can affect every part of life, and people who experience it often have the least amount of power: those in insecure work, who are younger, on temporary visas, facing racism, ableism, homophobia, language barriers and other forms of discrimination.
“While it is a final crucial step in the Commission’s Respect@Work agenda, there is still plenty of work to be done. The report calls for real action, accountability, and cultural shifts for everyone to be safe and respected at work.”
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