Overview

The prevalence of sexual harassment in Australian workplaces is increasing. The Australian Human Rights Commission (AHRC) national survey in 2012 found that 21 per cent of respondents who had been in the workforce in the last five years experienced workplace sexual harassment. In its 2018 survey, this had increased to 33 per cent.

Acting Premier James Merlino joined Minister for Workplace Safety Ingrid Stitt and Minister for Women Gabrielle Williams on International Women’s Day 2021 to announce the establishment of a Ministerial Taskforce on Workplace Sexual Harassment to develop reforms that will prevent and better respond to sexual harassment in workplaces.

To support this work, the Victorian Government conducted a consultation from 25 June to 9 August 2021 to hear from the Victorian community how we can better:

  • prevent sexual harassment from occurring
  • support workers to report sexual harassment
  • enforce compliance when there is a breach of occupational health and safety duties
  • raise awareness and promote accountability in workplaces.

Our consultation - what you told us

The public consultation received over 30 submissions from a cross section of the Victorian community, including individuals with lived experience, law firms and legal professional organisations, the health sector, industry associations, unions and academics.

Most submissions agreed that workplace sexual harassment has a significant negative impact on victim-survivors, workplaces and the broader economy. Most submissions also agreed that the full extent of the prevalence, nature, reporting, impacts of and responses to sexual harassment in the workplace was not well understood.

There was also broad agreement in the submissions that existing laws and regulations do not appropriately respond to workplace sexual harassment. Many submissions recognised the complex, and overlapping, legal and regulatory frameworks – including Occupational Health and Safety Act 204 (OHS Act) and Equal Opportunity Act 2010 (EO Act), as well as Commonwealth legislation. This complexity creates a confusing landscape for employers, victim-survivors and regulators.

For example, WorkSafe Victoria (WorkSafe) has a role in eliminating workplace sexual harassment by ensuring employers comply with their duty to provide and maintain a healthy and safe working environment. However, many submissions focused on the role of the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), because of the positive duty to eliminate workplace sexual harassment under the EO Act. This highlighted a gap in public perception that sexual harassment is a workplace health and safety issue.

Most submissions recognised that employers have a key part to play in addressing workplace sexual harassment. Many submissions proposed developing training, practical tools and guidance tailored to specific industries and sectors, to help employers prevent and respond to sexual harassment. Other submissions called for additional sanctions on individuals who sexually harass others, or on employers and leaders who perpetuate a toxic workplace culture.

Many submissions acknowledged the need to holistically support victim-survivors to report sexual harassment and in receiving care. The most common suggestion was introducing some form of anonymous reporting. Other suggestions for victim-centred initiatives included using restorative justice practices, linking victim-survivors with counselling and legal assistance services and providing victim-survivors with clear information on complaint and reporting pathways.

The thematic summary shows your responses to the four pillars of reform outlined in the Consultation Paper:

  • Preventing sexual harassment from occurring
  • Supporting workers to report sexual harassment
  • Enforcing compliance when there is a breach of occupational health and safety duties
  • Raising awareness and promoting accountability in workplaces.

You can download the document in our outcomes summary section or view them via the tabs below.

Preventing sexual harassment from occurring

Prevention is key to addressing workplace sexual harassment

Most submissions recognised a need to address the drivers of sexual harassment in the workplace and avoid only responding once harm has already been done.

Some submissions raised that taking steps to shift social and organisational norms were essential to preventing sexual harassment. Suggestions to achieve this included having more women in workplaces and leadership positions, employers explicitly condemning sexual harassment and instituting policies that clearly articulate employers’ complaints procedures.

Several submissions saw cultural change through greater victim-survivor participation in prevention activities. In line with restorative justice principles, there was potential to improve workplace culture through discussions between the victim-survivor, employers, perpetrators and broader workplace communities to understand the impacts of workplace sexual harassment and address them.

There is a desire for genuine change in workplaces through using practical tools, regular training and clear guidance

Some submissions raised that while workplaces have policies on sexual harassment, more work was needed to implement strategies to effectively prevent sexual harassment from continuing.

Many submissions suggested better training for employers, employees, regulators (e.g. WorkSafe inspectors) and others (e.g. health and safety representatives) on the impacts of sexual harassment and identifying and responding to this issue, including as bystanders. They identified training should happen during onboarding and continue regularly. In addition to employers providing their own training, submissions suggested sexual harassment education could be delivered as part of licencing regimes or compulsory professional development (e.g. in the legal and financial sectors), through community legal education or by regulatory bodies.

Many submissions raised early intervention as important. Suggestions to proactively deal with risk of sexual harassment included using tools to identify the nature of gendered violence and harassment and its causes within a workplace, such as online attitudinal surveys. Some submissions supported the use of OHS Regulations to increase the number of base controls and require employers to intervene for sexual harassment.

Most submissions recognised that employers need support in taking preventative action against sexual harassment in the workplace. The submissions suggested that this could involve providing tools and templates to employers to identify workplace sexual harassment, promote gender equity and understand how cultural change happens in practice.

Many submissions raised the importance of guidance that is tailored to industries, sectors and workplaces. Some submissions noted that industry representative bodies should be active in developing and implementing industry-driven guidance.

There is support for expanding prevention activities through existing structures and services

Most submissions strongly supported using existing structures and services and adapting them to undertake primary prevention activities to stop workplace sexual harassment.

Submissions emphasised this will require adequate funding and resourcing for workforces to deliver long-term outcomes. The submissions identified both WorkSafe and VEOHRC as having potential to have a stronger role in prevention activities. This could involve targeted support for particular high-risk employers to ensure they are proactively minimising risk of sexual harassment.

Prevention requires a wholistic, system-wide approach

Several submissions called for dedicated prevention efforts to address the underlying gendered drivers of sexual harassment, as part of a holistic strategy to prevent violence against women and promote gender equality.

Some submissions also suggested consideration could be given to extending the coverage of existing legislation to workers in the gig-economy and volunteers or other unpaid workers. Many submissions also noted the need for ongoing consultation with key stakeholders to ensure a system-wide approach has appropriate coverage and balances a diversity of perspectives.

Other government levers outside of the OHS framework were raised in submissions. For example, the Victorian Government could review contracting and procurement guidelines to ensure that suppliers are complying with their obligations relating to sexual harassment.

Supporting workers to report sexual harassment

It should be easier for victim-survivors and bystanders to report incidents of sexual harassment, without fear of reprisals

Anonymous reporting was a widely suggested reform to improve reporting of sexual harassment incidents. Submissions noted any anonymous reporting mechanism should be informal and linked to support services for victim-survivors and bystanders. It should also be accompanied with clear information about how it works and what will happen to the information they provide.

There were different views as to whom anonymous reports should be made. Some submissions suggested that a specialist victim-focused organisation staffed with counsellors should host the anonymous reporting tool. Others have suggested online reporting portals or officers independent of the employer organisation.

Some submissions noted victim-survivors and bystanders needed extra legal protections (such as protections under employment law or from defamations to report sexual harassment) so they could have the confidence to raise concerns about sexual harassment in the workplace.

The response to sexual harassment needs to put victim-survivors first

There was significant support in submissions for a complaints system to be designed around the needs of victim-survivors and be trauma-informed.

Many submissions noted victim-survivors needed clear information about the complaints process (and different pathways available), linking in with counselling services or an advice line, and options for making decisions about confidentiality. Some submissions also raised the need for reforms and possible regulation to investigation processes and called for perpetrators to be removed from the workplace during any investigation, rather than the victim-survivor.

Several submissions raised the need for alternative pathways to address incidents of sexual harassment, which included using restorative justice practices and less formal dispute resolution procedures. This would minimise the impact that legalistic processes have on victim-survivors, which could be re-traumatising through administrative burden, strict time limits and invasive questions.

Submissions also noted that there was room for employers and regulators to improve in how they took positive action following reports of sexual harassment in the workplace. Some submissions raised concerns regarding WorkSafe’s capacity to appropriately handle sexual harassment matters and recommended additional training and resourcing for WorkSafe staff focusing on workplace sexual harassment. Similarly, some submissions called for a greater role for VEOHRC to support individual victim-survivors, through enhanced investigation powers.

Non-disclosure agreements (NDAs) cause harm in sexual harassment matters and need reform

Many submissions noted that employers have commonly misused NDAs to the detriment of victim‑survivors – by not allowing them to tell their stories.

Reforms raised to address this practice included a practice note or guideline that identifies best practice principles for the use of NDAs for workplace sexual harassment (e.g. NDAs enacted only at victim-survivor’s request), and a review mechanism for victim-survivors signing NDAs (e.g. can only be signed if they have received legal advice).

Time pressures placed upon the victim-survivor to sign NDAs should also be addressed, to increase the chance of the victim-survivor being able to advocate on their own behalf.

Some submissions called for legislative amendments providing NDAs could only be enforced under limited circumstances. For example, amendments could provide that NDAs cannot prevent victim-survivors of sexual harassment from making a complaint to WorkSafe or other regulatory body.

Other submissions called for NDAs to be banned in totality for workplace sexual harassment.

Victim-survivors must be linked to specialised services that meet their legal and non-legal needs

Many submissions called for additional services to support victim-survivors. Predominately, this included social workers, legal assistance, counselling and peer support groups. Employers could also assist by appointing sexual harassment contact officers who provide advice or improving the Employee Assistance Program.

Submissions also identified a need for education about rights and obligations of employers and employees on relating to workplace sexual harassment. Some submissions raised the idea of a Working Women’s Centre to provide holistic support for legal and non-legal issues, especially for victim-survivors on low incomes.

Enforcing compliance when there is a breach of occupational health and safety duties

Victorians do not see sexual harassment as an occupational health and safety issue

Many submissions noted that there was little understanding of the fact that the existing OHS framework could be used to address sexual harassment. As a possible example of this, some submissions did not mention on the role of WorkSafe or OHS issues in response to the Consultation Paper.

Where submissions did address OHS changes, there was support for a requirement for employers to report incidents of workplace sexual harassment to WorkSafe (through an amendment to the OHS Act or OHS Regulations) including an expansion to the type of incidents that employers must report to WorkSafe.

However, other submissions did not support new reporting requirements, including because it would create additional administrative burden on business.

There were diverging views as to who should be responsible for eliminating sexual harassment

Some submissions did not support WorkSafe having an enhanced enforcement role for workplace sexual harassment. Instead, these submissions believed it was a matter for VEOHRC to handle and that greater resources should be given to VEOHRC.

Many submissions recommended that VEOHRC needed to be given enforcement powers under the EO Act and the ability to address systemic issues of sexual harassment following investigation. Suggestions also considered using other areas of law such as introducing a fit and proper test in employment contracts or introducing a criminal offence for workplace sexual harassment (similar to serious workplace bullying).

Some submissions considered that enforcement activities need to apply to individual employees, as opposed to employers only. This could involve use of disciplinary sanctions, such as terminating employment, compiling an offender registry and penalties for colleagues who encourage, defend, or lie for the perpetrator.

Enforcement and compliance require sustained effort from regulators and employers

Some submissions raised the need for regulatory bodies to track employers’ compliance with their duty to eliminate sexual harassment.

This would require employers to keep proper records sexual harassment complaints and outcomes of these complaints, which feed into mandatory annual reporting.

WorkSafe and VEOHRC could also be further resourced to monitor compliance with orders, enforceable undertakings or compliance notices.

Raising awareness and promoting accountability in workplaces

There is a need for more data to better understand workplace sexual harassment

A common theme within submissions was the need to invest in further data collection, research and evaluation. There was broad agreement in the submissions about the need to build the evidence base on the prevalence and nature of gendered violence and harassment in different industries and in workplaces of different types and sizes.

This would help employers and regulators (like WorkSafe and VEOHRC) to recognise, report and respond appropriately to sexual harassment and gendered violence.

Several submissions also called for more public awareness campaigns to promote better understanding.

Publicly available reporting and information would build transparency and promote accountability

Many submissions noted the lack of publicly available data on sexual harassment to drive evidence-based reforms.

In response to this issue, there were suggestions to provide VEOHRC more resources to collect and publish de-identified data and case studies, or expansion of the Gender Equality Act 2020 to include private companies in reporting on progress on gender equality.

However, some submissions did not support additional reporting requirements, as they could be burdensome, especially on small businesses.

Submissions also raised that information and reporting on sexual harassment and its prevalence in workplaces must also be accessible to everyone, including vulnerable groups such as Aboriginal and Torres Strait Islander workers, workers with disability, workers of culturally and linguistically diverse backgrounds and LGBTIQ+ workers.