Key challenges and priorities

Key challenges and priorities for the office of the Sex Discrimination Commissioner, particularly in relation to the recent Respect@Work reforms 

AI Group’s Policy-Influence-Reform Conference

Emeritus Professor Rosalind Croucher AM FAAL FACLM(Hon)

Canberra 

Introduction 

It is a pleasure to be here, and I take this opportunity to acknowledge the Ngunnawal people as traditional custodians of the ACT and recognise any other people or families with connection to the lands of the ACT and region I would also like to acknowledge and welcome other Aboriginal and Torres Strait Islander people who may be attending today’s event.

I was delighted to receive the invitation from AiG’s Chief Executive, Innes Willox AM. I came to know and respect the work of AiG, and Innes, during my ALRC days, particularly in relation to older workers.^[1]

As Nicola Street said in her kind introduction, I am President of the Australian Human Rights Commission and the Acting Sex Discrimination Commissioner until 4 September, when Professor Anna Cody commences as Sex Discrimination Commissioner. (I’m now also acting as the Disability Discrimination Commissioner and Age Discrimination Commissioner – so, given the audience, as a bonus I will share some insights from those portfolios I will try to get them in as well). The SD team has prepared some lovely slides in a powerpoint presentation, a few of which I will use. 

I was asked to speak of the challenges and priorities of the office of the Sex Discrimination Commissioner, particularly in relation to the recent Respect@Work reforms. So, I will speak to that aspect of the brief.

In terms of the priorities of the office, I will leave this to Dr Cody to identify and develop herself.

The Commission, as distinct from the Commissioner, has continuing work and new responsibilities under the legislative amendments familiarly known as the ‘Respect@Work’ amendments. And we have been developing a range of materials associated with them.

The single biggest change for employers is the introduction of a positive duty on all employers and persons conducting a business or undertaking (PCBUs) to take ‘reasonable and proportionate measures’ to eliminate sex discrimination, including sexual and sex-based harassment.

It applies to conduct being engaged in by:

• employers themselves
• their employees, workers and agents
• in, some cases, third parties towards employees

The new statutory obligation requires organisations and businesses to take ‘reasonable and proportionate measures’ to eliminate, as far as possible: 

• discrimination on the ground of sex in a work context 
• sexual harassment and sex-based harassment in connection with work 
• conduct creating a workplace environment that is hostile on the ground of sex, and
• some acts of victimisation
  • Person-centred and trauma-informed 

The changes proposed in this Bill, particularly the positive duty in relation to sex discrimination and the conferral of new enforcement powers on the Commission, have the potential to achieve significant systemic reform. 

The overall change shifts the burden away from remedial action by individual complainants and towards employers taking proactive and preventative action to eliminate unlawful conduct. 

Rather than viewing this duty as a burden, employers can create a culture that is respectful and professional. This is about good leadership and ultimately a more productive workplace.

Respectful workplaces and good leadership go further than recognising gender and sexual harassment as potential risks, but also see the risks in relation to racial slurs, in relation to ageist stereotyping, in relation to treating people with disability poorly. All of those are areas of disrespect and where your leadership can shine.

As more businesses focus on preventing and addressing disrespect and its associated risks, workplaces will be better for everyone. 

The resources that the Commission has been developing will help.

Today I will speak a little about what the positive duty means for you and about the Commission’s role. Before I do so, I want to share a story that illustrates to me why it is necessary.

I checked the list of attendees, but, just in case, do we have anyone in the audience from Sydney Water? Or a business called Vitality Works?

The case is one that arose under the NSW Anti-Discrimination Act, but its facts are the ones that are important: Vitality Works Australia Pty Ltd v Yelda (no 2) [2021] NSWCA 147. The poster case. It’s different from the kind of sexual harassment case that you may have had to deal with in your organisation. It shows how wide the concept of sexual harassment can be. Now the SDA also includes sex-based harassment. 

I won’t display an image of the poster, but I will describe it to you.

A female worker, Ms Yelda, poses willingly for a photo to promote spinal health in her workplace, as part of the ‘SafeSpine’ initiative.  But then someone used the slogan: ‘Feel great — lubricate!’ and the poster was displayed in a male-dominated workplace. The NCAT and the Court of Appeal didn’t take long to conclude that it carried sexual innuendo and satisfied the definition of sexual harassment. Damages had been awarded by NCAT at its maximum: $100,000 from Vitality Works and $100,000 from Sydney Water (although it was assessed at nearly $320,000). 

I question the leadership, and levels of intervention/approval that were missed or failed in the leadup to the publication of this poster.

Moreover, where were the workers that saw it? What did they do? If you had been in Ms Yelda’s workplace, and you did not rip that poster down or stick a big black Texta over it, you may be contributing to the sexual innuendo and the sexual harassment.

From an economic point of view such failures are very costly.

Sexual harassment has a high cost. The annual cost of workplace sexual harassment to the Australian economy is $3.8 billion.^[2]

Another example, and one under the federal SDA, concerns the more familiar kind of sexual harassment. It is from a regional legal practice, with one partner (the Mr D’Arcy case), and led to an award of damages in the Federal Court of $120,000 plus aggravated damages of $50,000, which the bench of three would have increased if it could, and legal costs would have followed. Just in the Court of appeal, each side was represented by Senior and junior counsel plus their solicitors.^[3]

Cultural change needs responsibility in leadership. The responsibility spreads into bystander interaction as well. We’ve long known that incidents don’t need to be this obvious to be a problem. Jokes that amount to casual sexism, casual racism or disparaging remarks or ‘jokes’ about a person’s disability aren’t acceptable in the workplace and contribute to a poor culture.

Change starts small and it’s up to everyone to contribute. As soon as we assume it’s for someone else to deal with, whether it’s other managers or HR or some other part of an organisation, then we have dropped the ball.

This is what a positive duty is all about.

But it’s not one size fits all.

What are the ‘reasonable and proportionate measures’ employers are required to take, will vary between employers and PCBUs.^[4] It’s adaptable. Moreover, the new duty builds on the existing vicarious liability provision in the SDA that requires employers and principals to take ‘all reasonable steps’ to prevent their employees and agents from engaging in unlawful conduct. It transforms this into a positive obligation, not a defensive posture invoked after a problem.

A system that sits so heavily on complainants putting their hand up, neglects the important role that workplaces and workplace leaders play in preventing sexual harassment – indeed any discrimination – from occurring in the first place.

The positive duty also operates concurrently with the existing duties in WHS laws, which require employers and PCBUs to provide a safe working environment. It is intended that WHS laws and discrimination law will ‘operate in a mutually reinforcing way to build safer and more respectful workplaces’.^[5]

What does it mean for businesses? 

The Respect@Work report proposed a new framework, structured around seven domains, in two parts: prevention and response, with ‘leadership’ sitting at the apex of the whole thing.

On the prevention side, the framework focuses on the need for: 

Firstly, strong leadership to create a safe workplace environment. Corporate leaders have a crucial role to play in creating safe, respectful workplaces and in helping to end workplace sexual harassment by inculcating ethical values in workplace operations and culture. ‘Tone from the top’ matters. 

Secondly, a greater focus on risk assessment, drawing on a commitment to transparency, a willingness to learn from past experience and a philosophy of continuous improvement within the workplace. A risk management approach to sexual harassment, similar to an approach used to address other work, health and safety risks, can be used to identify measures to control or eliminate risks of sexual harassment in the workplace. 

Thirdly, culture – policies which build an organisational culture of trust and respect. 

And lastly, we need knowledge – using workplace education and training to improve knowledge and develop a collective understanding of expected workplace behaviours and processes. 

On the ‘response side’ the framework recommends three areas in which employers can focus their response efforts:  

Firstly, providing trauma-informed support and prioritising the wellbeing of workers who have been harassed. 

Secondly, increasing reporting options for workers and addressing barriers to reporting. It will be particularly important to create new ways for sexual harassment to be addressed other than launching a formal investigation, which is a route that very few victim/survivors go down.  

And lastly, measuring, which means collecting data at a workplace level and an industry level, so that we can understand the prevalence, nature and impacts of workplace sexual harassment and evaluate the effectiveness of initiatives designed to address it.  

Last year, the Respect@Work Council released its Good Practice Indicators Framework for Preventing and Responding to Workplace Sexual Harassment. The Council brought together leaders from key government regulators and policy makers. The Sex Discrimination Commissioner chaired this group, and Innes Willox was also a member.

The ‘Good Practice Indicators Framework’ identifies the need for organisations and businesses working to eliminate relevant unlawful behaviours to ensure their approach is: 

• Practical and outcomes-focused
• Adaptable for employers of all sizes and in all industries, and 
• Designed to minimise harm to workers. 

Just thinking back to that poster case, this is kind of practice that was not inevitable. It is not acceptable. It was preventable. 

Understanding the framework proposed is a critical starting place for the changes to come. The Positive Duty Guidelines that will shortly be released by the Commission will provide organisations and businesses with more fulsome guidance as to how they can fulfill their positive duty obligations. 

Commission inquiry and enforcement powers

The recent legislative amendments give the Australian Human Rights Commission new inquiry and enforcement powers to ensure that organisations and businesses are complying with their positive duty. These powers come into effect from 12 December this year.

These powers allow the Commission to commence an inquiry when it ‘reasonably suspects’ that an organisation or business is not complying with the positive duty. This suspicion might come from information or advice provided by other government agencies or regulators, impacted individuals, unions or worker representatives or from reports in the media. We already have some inquiry powers – like the power we used to conduct the Respect@Work and Set The Standard inquiries.  This will complement those powers with a more regulatory focus.

As noted earlier, the Guidelines will be launched very soon and will provide far more detail on the requirements of organisations and businesses, and will give a clearer sense of what the Commission will be seeking with regards to compliance.

Before taking any questions you may have on the positive duty, I take this opportunity to also note some of the other work the Commission is doing that may be of interest to you. This goes to my earlier remark about leadership and the possibility for good you have as leaders.

Disability Employment and IncludeAbility 

The Commission’s IncludeAbility Project aims to increase sustainable and meaningful employment opportunities for people with disability. 

The employment participation rate for people with disability has remained stagnant for over 30 years. The reasons why we should employ people with disability are well known, not just for the people with disability, but also economic and social benefits in a workplace, but it appears that one of the greatest barriers has been in the ‘how’.

This is where the Commission’s IncludeAbility Project has focused:

How can we increase employment participation rates for people with disability? 

What do employers and employees need in order to achieve positive employment outcomes?

IncludeAbility is organised around 4 pillars:

• co-designing with 17 Ambassadors with lived experience of disability
• co-ordinating an Employer Network of 17 of Australia’s largest public and private sector employers, 
• hosting a publicly available web portal and
• running innovative pilot employment programs

The place-based pilots match an employee with disability with an employer for a minimum 12-week period. Pilot participants are paid at or above award wages.

IncludeAbility currently has 2 employment pilots.

IncludeAbility Illawarra 

Which focuses on people with acquired disability seeking to return to employment. The Disability Trust’s Employment Service matched job seekers with interested employers in the NSW Illawarra region. 

IncludeAbility’s Perth pilot with Woolworths and Good Sammy 

Which focuses on young people with intellectual disability moving into open employment. Pilot participants were placed at local Woolworths stores and roles were customised according to their participant interests, skill sets and store needs. 

The IncludeAbility staff at the Commission work shoulder to shoulder with the employer and a Disability Employment Service, to build the capacity of employers to recruit, retain and advance the employment of people with disability. 

To date, 25 people with intellectual and acquired disability have been offered ongoing employment at full award wages at the end of the pilot.

Older Workers and Ageism

I will end with some words on the work the Commission is doing on older workers and ageism. 

For a start, a mature age worker is someone aged 45 and over – an ABS stat I learned when leading the ALRC inquiry on barriers for older workers in Commonwealth law. In many presentations I did then, the idea that many in the room were already regarded as older workers causes a frisson of concern.

Australians are increasingly working to older ages; the average retirement age is rising and pension eligibility is rising. (‘Retirement age’ is somewhat fictional, linked in the main to eligibility for certain things like the old age pension’.) Despite this, older adults face cumulative barriers to gaining employment, such as age discrimination, illness or injury, loss of confidence, lack of training opportunities, and increased caring responsibilities.^[6] 

Ageist stereotypes are deeply rooted in cultural values and norms that perceive ageing and older age as undesirable. They can foster a belief that older workers are less competent, less capable of learning, and less equipped to adapt to technological change than younger workers. But this is not the reality.

This year the Commission partnered with the Australian Human Resources Institute for a fifth time on Employing and Retaining Older workers, a report providing insights into the employment climate and the shift in perceptions around our ageing workforce.^[7] 

The report also reflected employment data, finding that despite the 2023 labour market being tight, and flexible work practices more acceptable, ageist perceptions and employment practices prevail. 

The 2023 report found18% of employers still say they have an age above which they ‘definitely’ or ‘probably’ won’t recruit. The good news is that this percentage has been dropping, down from where it started at 52% in 2014.  While this is an improvement, it is not good enough.

Workplace age discrimination persists despite this contradicting the real-life experience of working with older people, as noted in the report. Many employers report no difference between older and younger workers in terms of job performance, concentration, ability to adapt to change, energy levels and creativity. Advantages of older workers were found to be coping with stress, attendance, reliability, awareness, commitment and loyalty. Advantages of younger workers were their physical capability, ambition and proficiency in using technology. It seems that most workplaces would need a combination of these skills.

Creating and maintaining an age-diverse workforce is more reflective of our society and good business. Possible benefits include enhanced productivity, multi-skilled teams, innovation and retention of knowledge between generations. 

Former Age Discrimination Commissioner, the Hon Dr Kay Patterson AO, said: “Many older workers can offer the knowledge, skills, and wisdom that businesses are currently seeking. Employers just need to shift their perspective, trust the data and stop buying into myths about older workers.” 

I encourage all employers to include age and disability in their diversity discussions and policies. 

I will now take three hats off and invite questions.

Endnotes

[1] ALRC, Access All Ages – Older Workers and Commonwealth Laws (ALRC Report 120, 2013).

[2] Deloitte Access Economics, The Economic Costs of Sexual Harassment in the Workplace (Final Report, February 2019). This was a study commissioned for the Respect@Work report.

[3] Hill v Hughes t/as Beesley and Hughes Lawyers [2019] FCCA 1267.

[4] Explanatory Memorandum, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, 4.

[5] Explanatory Memorandum, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, 5.

[6] ARC Centre of Excellence in Population Ageing Research, Tapping into Australia’s ageing workforce: Insights from recent research, CEPAR research brief (June 2021). At https://cepar.edu.au/resources-videos/research-briefs/australia-ageing-workforce-research-insights.

[7] Australian HR Institute, Employing and Retaining Older Workers, (May 2023). https://www.ahri.com.au/wp-content/uploads/230427-Employing-Older-Workers-Report.pdf.

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