Issues Affecting Behaviour in the Workplace

Address to the Australian Public Service Commission Harassment Contact Officers by The Hon John von Doussa QC, President, Human Rights and Equal Opportunity Commission, 10 May 2004.


Introduction

I would like to begin by thanking the Australian Public Service Commission (APSC) for inviting me to address you today, and thank Margaret Boylan (Regional Director, APS Commission, SA/NT) for her warm welcome.

I also want to express my appreciation at the impressive turn-out today. It is very encouraging to see this level of interest in a discussion about the ongoing problem of harassment and discrimination that persists in workplaces around the country.

As today is hosted by the APSC, what I will say is directed to the APS workplace, but it will be apparent as I go along that identical issues exist in other workplaces.

The problem of harassment and discrimination in the workplace, as well as in all areas of public life, has received ongoing recognition over the last 25 years. It has been addressed carefully and in detail within the APS. Now all APS employees are subject to the Code of Conduct, set out in s13 of the Public Service Act 1999 (PS Act). The Code of Conduct directly prohibits harassment:

"An APS employee, when acting in the course of employment, must treat everyone with respect and courtesy, and without harassment."

It also provides directly that APS employees must comply with other Australian legislation which of course includes the major federal anti-discrimination Acts:

"An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws."

An employee who fails to observe these requirements may be found to have breached the Code of Conduct and consequently be subject to a sanction under s15 of the PS Act.

Corresponding duties exist on Agencies and on management to ensure that employees behave accordingly so that the workplace is a safe one for everyone.

It is well understood that harassment and discrimination, if allowed to occur and persist, can have very serious consequences on the health and wellbeing of the target of the unwelcome conduct. For the employer, the results are likely to include disruption to the efficiency of the organisation, a breach of Occupation, Health and Safety rules, and a workers compensation claim or an expensive common law claim for failure to maintain a safe working environment.

The APSC has published comprehensive material setting out the APS requirements, and guidelines to prevent harassment. In particular, there is the 2001 booklet "Maintaining a harassment- free workplace". I am sure that you are familiar with the recommended strategy which includes that a workplace should have:

A Policy Statement that is prominently displayed, and made known to all employees from top to bottom of the organisation through information and training sessions; and
Procedures for dealing with incidents of alleged harassment including the appointment of contact officers and informal and formal reporting procedures.

I do not intend to spend time repeating what is available in that excellent material. Although you may have read it before I think it warrants a reread from time to time.

Notwithstanding all the steps taken within the APS, and workplaces generally, regrettably harassment and discrimination persist. Hence the need for days like today. Statistics do not show a decline in the number of official complaints being made to authorities like the Human Rights and Equal opportunity Commission (HREOC). Perhaps this is partly due to growing public awareness about the insidious nature of harassment causing more victims to complain, but on any interpretation of the figures a very real problem continues.

Much of what I intend to focus on today relates to the experience of women in the workplace, simply because from the complaints HREOC receives, it is predominantly women who are the subject of most acts of discrimination and harassment at work. That is not to say that they are the sole victims of harassment and discrimination, but that they are disproportionately affected by these types of behaviours.

It is disheartening to realise that 2004 marks the twentieth anniversary of the Sex Discrimination Act (the SDA), because contemporary experience and research shows that precisely those forms of sex discrimination that are expressly prohibited by the legislation, continue in the Australian community, particularly in the workplace.

The grounds for discrimination that are prohibited under the SDA are:

  • sex,
  • marital status,
  • pregnancy and potential pregnancy,
  • family responsibilities, and
  • sexual harassment.

The legislation is just as needed and relevant today as it was at the time of enactment. Similarly, it remains just as critical that there are strident advocates of the right of every person - male or female - to be free of discrimination in the workplace.

I intend to go into more detail about the types of workplace-related complaints that HREOC is receiving. But before doing that, I think it is helpful to first outline the overall complaint handling function of HREOC, and to outline its other statutory functions, because some of these functions have enabled us to undertake research and develop a number of strategies to combat the incidence of harassment and discrimination in the workplace.

Commission's role and functions

The Commission occupies a unique place in Australian society. It sits independent of Government, yet it is not what is traditionally known as a non-government organisation or an advocate. It is a statutory authority responsible for the observance of human rights in Australia. Broadly speaking the Commission's responsibilities include:

  • education and public awareness;
  • discrimination and human rights complaints;
  • human rights compliance; and
  • policy and legislative development.

In practice, these responsibilities enable the Commission and its staff to undertake a range of investigative, monitoring, reporting and advocacy roles including:

  • resolving complaints of discrimination or breaches of human rights under federal laws;
  • holding public inquiries into issues of national importance, such as the forced separation of Aboriginal children from their families, a national paid maternity leave scheme, and the rights of children in immigration detention centres;
  • intervening or acting as amicus curiae in important legal cases that affect the human rights of people in Australia;
  • providing advice and assistance to parliaments and governments to develop laws, programs and policies;
  • researching human rights and discrimination issues; and
  • developing human rights education programs and resources for schools, workplaces and the community.

The work of the Commission is guided by the four federal laws that it is responsible for administering:

  • Racial Discrimination Act 1975
  • Sex Discrimination Act 1984
  • Disability Discrimination Act 1992
  • Human Rights and Equal Opportunity Commission Act 1986

Under the last of these Acts HREOC can receive complaints of discrimination in the workplace on the grounds that go beyond those in the specific anti- discrimination Acts, such as on the grounds of age, religion, trade union activity, political opinion, and sexual preference.

Complaints

Later this morning, I will be showing the new video about the conciliation process that HREOC offers to resolve complaints, but as a precursor to this, I think it is important to outline the legal basis for HREOC's complaint handling function, which differs from the complaints processes at the State and Territory level.

The functions of the Commission in relation to complaints under the Race, Sex and Disability Discrimination Acts are designed to give effect to Australia's obligations under international human rights treaties and conventions that the Government has ratified, such as the International Covenant on Civil and Political Rights, the Convention on the Elimination of Racial Discrimination, and the Convention on the Elimination of Discrimination Against Women, to name only a few.

Under these international instruments, Australia is required to report to the relevant United Nations treaty body to elaborate on how our anti-discrimination laws and policies are meeting our international obligations, thereby exposing the Government's record to international scrutiny.

As you know, the race, sex and disability discrimination laws provide an avenue to make a complaint of discrimination or harassment in the workplace and various facets of public life.

Last year, the Commission received inquiries from almost 9,500 people from all over Australia seeking information about the laws we administer, grounds for complaints and the complaint process. Most of the inquiries were by telephone, with a smaller number in writing or by email. We answer all inquiries, including those from lawyers who are seeking advice on behalf of a client.

HREOC staff outline the process by which individuals can lodge complaints of discrimination with the Commission, and how a respondent can go about responding to a complaint..

Quite a number of the matters raised in telephone inquiries do not fall within the coverage of the Acts which HREOC administers, and do not become formal complaints. Amongst these are a growing number of enquiries about bullying in the workplace. Bullying is a form of harassment, but only when it is by reason of one of the specified grounds in the Acts such as sex, race, disability, age and so forth, can HREOC accept a complaint. However, bullying for what ever the reason, can seriously harm its target, and an employer must treat it in the same way as any other form of harassment.

Where a formal written complaint is made, it is initially assessed to make sure it can be investigated under the laws for which HREOC has responsibility. After receiving all the relevant information, the complaint is then reviewed to determine if it should be terminated because it is either lacking in substance, or it is better dealt with by another statutory authority, or if in fact the Commission considers it is suitable for conciliation.

Conciliation is intended to bring the parties together - the complainant and the respondent - to try and resolve the matter. Conciliation is a confidential process where both parties are given the opportunity to talk through the issues and reach an agreement on their terms. They are not required to have legal representation, but may do so if appropriate.

I stress that the Commission is independent and unbiased in these discussions. The Commission is not acting for either party. Our goal is try and resolve the complaint in a fair and timely process with the minimum expenditure and stress for either party. We hold these conciliation conferences throughout Australia - in capital cites and country towns.

If a complaint cannot be conciliated, it will be terminated by the President. The termination of a complaint triggers the jurisdiction of either the Federal Court or the Federal Magistrates Court to deal with the complaint. The complainant then has the option to go to court, and has 28 days from the complaint being terminated to make such an application.

As I indicated earlier, HREOC also inquires into complaints under the Human Rights and Equal Opportunity Commission Act, but the latter part of the process is different to the one I have just described.

Complaints received under this Act can also be resolved by conciliation between the parties. However, if the matter cannot be conciliated or has been declined (because it is lacking in substance or is better dealt with by another statutory authority), then it cannot proceed to court. Rather the Commission, if it forms the view that there has been discrimination or a breach of a human right, can present a report to federal Parliament outlining its findings and make recommendations to overcome the discrimination or breach.

Last year we received 1,236 formal complaints under all of the legislation we administer, and 84 per cent of them were finalised within 12 months of being lodged. One in three complaints was resolved through conciliation. The breakdown of these complaints is:

  • Racial Discrimination Act - 182
  • Sex Discrimination Act - 380
  • Disabilities Discrimination Act - 493
  • HREOC Act - 181

Having outlined the broad parameters of HREOC's complaint handling processes, I want to turn now to two specific areas of concern.

1. Pregnancy discrimination

In the last few years, there has been a significant rise in complaints because of discrimination relating to pregnancy and associated family responsibilities. The first rise in complaints of this nature was triggered by HEROC's National Pregnancy and Work Inquiry, which concluded in August 1999. A further rise followed HREOC's release of a paper outlining its preferred paid maternity leave scheme in December 2002.

The media coverage that these issues received had the clear effect of educating women about their rights in the workplace.

So much so more than 35% of complaints received under the SDA last year - in other words 145 complaints - related to pregnancy discrimination.

Human resource issues in the workplace concerning pregnancy have been well canvassed in recent years, especially in HREOC's report following the National Pregnancy and Work Inquiry entitled Pregnant and Productive: It's a right not a privilege to work while pregnant, published in August 1999. That report was followed by HREOC publishing Pregnancy Guidelines to help workplace participants to understand and fulfil their obligations under the SDA. Those guidelines are readily available on the HREOC website.

Section 3.4 of the Guidelines deals with the return to work after maternity leave. This is another important issue where there have been several court decisions in recent months. The Guidelines correctly make two observations:

"Under industrial relations laws, awards and agreements as well as the federal Sex Discrimination Act, an employee is generally entitled to return to the position she held prior to commencing leave or to a comparable available position if her original job has ceased to exist ...";

and

"An employee returning from maternity leave may also wish to work part-time or on a job-share basis. Awards, agreements, and some State laws specifically allow for a return to part-time work after maternity leave by agreement with the employer. In some situations, an employer may be deemed to have made a discriminatory decision if a reasonable request for part-time work is refused."

Then follows a comment that there is a growth of precedent in this area. That growth in precedent has continued. In the last two years, there have been one Federal Court and six Federal Magistrates Court decisions concerning discrimination under the SDA alleged by women either seeking to return to work following maternity leave, or seeking to vary working hours to meet family responsibilities connected with a young child.

The cases are Thomson v Orica Australia Pty Ltd [1], Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd & Ors, [2] Song v Ainsworth Game Technology Pty Ltd [3], Escobar v Rainbow Printing Pty Ltd (No. 2) [4], Mayer v Australian Nuclear Science and Technology Organisation [5], Evans v National Crime Authority [6] and Kelly v TPG Internet Ltd. [7]

A number of points emerge from these decisions.

In each case the employer after a strenuous denial on the issues that went to trial, was found to have unlawfully discriminated against the applicant in one or more respects. Significant monetary awards were made in all but one of the cases.

Within the reasons for decision there is discussion of both direct and indirect discrimination.. The SDA renders unlawful both types of discrimination in the workplace on the grounds of the sex or marital status of the aggrieved person, and on the ground of pregnancy or potential pregnancy. [8] In the case of family responsibilities, the SDA only renders unlawful direct discrimination on that ground, and then only if the discrimination results in the dismissal of the employee. [9]

This is important as there are different tests for direct and indirect discrimination.

When direct discrimination is alleged the test is whether by reason of one of the prescribed characteristics, the alleged discriminator has treated the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person without that characteristic. [10] This requires the court to identify a comparator and then to determine whether the aggrieved person has been treated less favourably.

In two of the cases decided by the Federal Magistrates Court direct discrimination on the ground of pregnancy was found. In Mayer, after learning of the employee's pregnancy, the employer extended her contract for only one year rather than for two years which was the normal practice, and in Kelly the employer promoted the employee to manager in an acting position rather than to a permanent position which would have been expected if the employee had not been pregnant.

In the case of indirect discrimination the test is quite different. Indirect discrimination occurs where the employer imposes an unreasonable condition, requirement or practice that has or is likely to have the effect of disadvantaging persons who have the prescribed characteristic - sex, marital status or pregnancy. [11] There is no need to inquire if the aggrieved person is being less favourably treated than a comparator. The Act provides that indirect discrimination does not occur where the imposition of the condition, requirement or practice is reasonable in the circumstances. [12] As unlawful discrimination on the ground of family responsibilities can only be direct, in such a case the reasonableness of the different treatment that constitutes discrimination is not a defence.

In five of the Federal Magistrates Court cases, the employer did not meet a request to work part-time, or to accommodate altered hours after the birth of a child to meet child care requirements.

In Escobar and Mayer(and by implication in Song) the court characterised the employers' stance as indirect discrimination on the ground of sex contrary to s5(2) of the SDA as the denial had the effect of imposing a requirement to work full-time or during inflexible times, and such a requirement was likely to disadvantage women. In Escobar and Mayer the court followed observations made by Commissioner Elizabeth Evatt in the well-known case of Hickie v Hunt and Hunt[13] where she inferred "from general knowledge that women are far more likely than men to require at least some periods of part-time work during their career, and in particular a period of part-time work after maternity leave in order to meet family responsibilities." [14]

I do not think that this proposition can be doubted, and it is likely to be accepted by courts in this area without the need for evidence. [15] If that is correct, the issue of contention that will arise in this type of case is whether the imposition of the requirement to work full time is reasonable in the circumstances. [16]

2. Sexual Harassment

Sexual harassment is covered by the SDA. [17] Sexual harassment is any unwelcome sexual behaviour which makes a person feel offended or humiliated where that reaction is reasonable in the circumstances. It is set out in s28A of the SDA, which provides:

1. For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

a. the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

b. engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

c. in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

2. In this section, conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Like discrimination on the ground of sex, marital status and pregnancy or potential pregnancy, sexual harassment is unlawful in employment and in a broad range of other areas of public life. [18]

'Conduct of a sexual nature'

Determining whether the conduct complained of is of a sexual nature is an objective test. This term has been interpreted broadly, and exposure to sexually explicit material and sexually suggestive jokes has been held to constitute conduct of a sexual nature. [19]

In Johanson v Blackledge, [20] the sale of a dog bone to a customer by a butcher, where the dog bone was shaped to resemble a penis, was held to be conduct of a sexual nature.

In the case of Aleksovski v Australia Asia Aerospace Pty Ltd, [21] Raphael FM found that an employee declaring his love for co-worker, suggesting that they discuss matters at his home, referring to her relationship with her partner and then repeating all of these things the following day; and becoming angry and agitated when she refused to do as he wished, was found to be conduct of a sexual nature. [22]

Unwelcome Conduct

For a breach of s 28A to have occurred the alleged conduct or sexual advance must be 'unwelcome'.. While determining whether the conduct is of a sexual nature is an objective test, determining whether it is unwelcome is a subjective test. [23]

In Aldridge v Booth [24] Spender J stated:

By 'unwelcome', I take it that the advance, request or conduct was not solicited or invited by the employee, and the employee regarded the conduct as undesirable or offensive: see Michael Rubenstein, 'The Law of Sexual Harassment at Work' (1983) 12 Industrial Law Journal 1 at 7 and Henson v City of Dundee (1982) 682 F 2d 897. [25]

In Elliott v Nanda [26]the applicant alleged that she was sexually harassed during her employment at a medical centre by the Director. Moore J noted:

the applicant was, at the time, a teenager and the respondent a middle-aged medical practitioner. In that context it is difficult to avoid the conclusion that [the conduct of the respondent] was unwelcome as were the sexual references or allusions specifically directed to the applicant. [27]

In Horman v Distribution Group Ltd, [28] Raphael FM held that while the conduct of the applicant resulted in a number of her claims of harassment being unsuccessful, 'everyone [is] entitled to draw a line somewhere', and certain of the activities complained about 'crossed that line'. [29]

In Wong v Su, [30] Driver FM held that there was no reliable evidence to support the applicant's claim that the respondent's conduct, although of a sexual nature, was unwelcome. Rather it was held that the sexual relationship between the parties was voluntarily entered into and continued for a considerable number of years.

Single Incidents

It is accepted that a one-off incident can amount to sexual harassment, as well as on-going behaviour. [31]

The 'Reasonable Person' Test

Under s 28A(1) of the SDA, a person sexually harasses another if the person engages in unwelcome conduct of a sexual nature in relation to the person harassed 'in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated'

Therefore it does not matter whether the harasser intended to or was aware that their behaviour would cause offence. The test is whether a reasonable person in all the circumstances would have anticipated that a complainant would be offended, humiliated or intimidated.

It is also not necessary for a complainant alleging sexual harassment to be the conscious target of the conduct, and an accidental act can therefore constitute harassment.

Damages in Sexual Harassment Cases

The following table gives an overview of damages awarded in sexual harassment cases under the SDA by the FMS and the Federal Court.

Case

Damages awarded

Gilroy v Angelov (2000) 181 ALR 57 $24,000.00
Elliott v Nanda (2001) 111 FCR 240 $15,000 (general damages)
$100 (compensation for counselling)
$5,000 (aggravated damages)
Shiels v James [2000] FMCA 2 $13,000 (hurt and humiliation)
$4,000 (economic loss)
Johanson v Blackledge (2001) 163 FLR 58 $6,000 (general damages)
$500 (special damages)
Horman v Distribution Group [2001] FMCA 52 $12,500
Wattle v Kirkland (No 2) [2002] FMCA 135 $28,035
Aleksovski v Australia Asia Aerospace Pty Ltd [2002] FMCA 81 $7,500 (non-economic loss)
McAlister v SEQ Aboriginal Corporation [2002] FMCA 109 $4,000 (general damages)
$1,100 (special damages)

New Legislative Developments relating to the Prevention of Workplace Harassment

One encouraging development I would like to mention is about to occur in Queensland. It recognises the need for mutually reinforcing legal and policy approaches to minimise harassment in the workplace. On 1 June 2004, a new advisory standard will commence under the Workplace Health and Safety Act 1995 QLD, thereby forming part of the workplace health and safety regulatory framework in that State. By incorporating this standard into the regulatory framework, Queensland will be giving some 'legal teeth' to the standard.

The Prevention of Workplace Harassment Advisory Standard 2004 will require employers to either follow the advisory standard (which is similar to the recommendation made in the 2001APSC booklet Maintaining a harassment-free workplace), or to take other steps that manage the risk of exposure of employees to harassment, including taking reasonable precautions and exercising proper diligence about the risk. It will be interesting to see the extent to which this preventative approach is successful in improving health and safety and eliminating unacceptable workplace behaviours in Queensland, and whether other jurisdictions follow suit.

National Survey of Sexual Harassment and the Code of Practice

Given the prevalence of sex discrimination complaints coming to the Commission's attention, HREOC has recently undertaken a review of what we know about, and how we manage sexual harassment in the workplace. We followed up that review with a number of initiatives that are designed to raise awareness about the forms of sexual discrimination that are prohibited, and how these practices can be minimised in the workplace.

Ultimately, our goal (and our statutory responsibility) is to minimise all forms of unlawful sex discrimination that continue to act as a barrier to a woman's full participation in the workplace and to the realisation of substantive gender equality.

One of the research projects that was initiated earlier this year by the Sex Discrimination Commissioner, Pru Goward, was the first national survey of sexual harassment in the Australian community, entitled 20 Years On: The Challenges Continue ...Sexual Harassment in the Australian Workplace.

The results of this survey are important for a number of reasons. First, they provide the first indication of the scale of sexual harassment and discrimination at the national level, what forms it is taking, and how much of this behaviour is being dealt with through the formal complaint processes. Secondly, the availability of this statistical information has enabled us to evaluate the data we have been collecting through the national complaints process, and to draw some preliminary conclusions, which I will share with you.

The survey, conducted by the Gallup Organization on behalf of the Commission, was a national household telephone survey of over a thousand Australians aged between 18 and 64 years. Given that it was a national survey of a specific target group, who were randomly selected, the results of the survey are empirically sound and able to be extrapolated to indicate the incidence of sexual discrimination at the national level.

Overall, the survey found that 28 per cent of adult Australians had experienced sexual harassment at some time in public life - 41 per cent of all women and 14 per cent of all men.

Sexual harassment in the workplace was experienced by 18 per cent of all respondents.

Broken down by gender, 28 per cent of Australian women and 7 per cent of men have been sexually harassed at work.

When we looked at how these figures compare on a global scale, the survey confirmed that the incidence of sexual harassment in Australia is broadly comparable with that of some other countries.

The New Zealand experience for example, recently measured by the New Zealand Human Rights Commission, is that 15 per cent of people have been sexual harassed at work.

Our survey also provided an insight into the nature of the sexual harassment experienced in the workplace.

Sexual harassment often begins with verbal abuse, innuendo or unwanted sexual comments.

It may go on to involve behaviour such as propositioning, asking for sexual favours, unwanted touching, assault or even rape.

Over half of the sexual harassment experienced in the workplace included physical forms of sexually harassing conduct, including unwelcome touching, hugging, cornering, kissing or unnecessary familiarity.

However, non-physical types of sexual harassment were most frequently experienced, such as suggestive comments or jokes, staring or leering, sexually explicit emails or SMS messages, and sexually explicit pictures or posters.

Importantly, a significant proportion of the sexual harassment experienced in the workplace was perceived as serious in nature with half of the interviewees to the survey rating the experience as very or extremely offensive.

The Challenges Continue also compares the results of the telephone survey with the findings of a review undertaken by HREOC of sexual harassment employment complaints made to the Commission entitled A Bad Business: Review of sexual harassment in employment complaints 2002 released late last year.

It provides excellent information about the nature of sexual harassment in employment complaints made to the Commission, reviewing 152 sexual harassment complaints finalised in the 2002 calendar year;

Comparing the results of A Bad Business and The Challenges Continue provides insight into the similarities and differences between the workplace sexual harassment reported to the Commission and that experienced by members of the community.

Some of the findings of this comparison are:

  • Seven in ten cases of sexual harassment in the telephone survey involved men harassing women, but significantly, 21 per cent of identified harassers were female - mostly harassing male victims.
  • Only five per cent of the workplace sexual harassment complaints reviewed in A Bad Business were made by men.

This suggests that male targets of harassment are less willing to make a complaint or formally address sexual harassment.

It also suggests that men may need to be made more aware of their rights to protection from sexual harassment.

In relation to the harassers - almost half of the harassers in the telephone survey were co-workers of the target, with over a third of harassers a person in authority in the workplace in relation to the target.

Of those harassed by someone in authority, the harasser was more likely to be male than female.

This is broadly in line with the findings of A Bad Business where 61 per cent of the alleged harassers were in positions of authority in relation to the target of the harassment, and over a third of alleged harassers were co-workers of the target.

The telephone survey also found that less than one third of the workplace sexual harassment experienced is formally reported to either employers or external agencies, such as HREOC.

Of the sexual harassment reported, most is reported to the target's manager, supervisor, employer or boss. A vote of confidence in the management!

The reasons given by interviewees to the telephone survey for not reporting the sexual harassment basically fell into three categories:

  • A lack of faith in the formal grievance or complaints mechanism;
  • A belief that the experience was not serious enough to warrant reporting; and
  • The target preferring to deal with the problem themselves.

Significantly, only one per cent of workplace sexual harassment was reported to anti-discrimination agencies such as HREOC. We have long thought, and now can show, that sexual harassment taken to the Commission and other anti-discrimination agencies is only the tip of the iceberg.

It is encouraging that the telephone survey results found that of those who have witnessed incidents of workplace sexual harassment in the five years prior to the survey, the vast majority took an active role in addressing it. This included confronting the harasser.. It includes other men as well as well as other women.

It appears that a message of intolerance and unacceptability concerning sexual harassment is certainly being heard in some workplaces. It is this message that employers and harassment contact officers need to promote so that it gains further acceptance.

The Challenges Continue suggests a number of ways in which employers can successfully address both the prevention and the incidence of sexual harassment in their workplaces.

To further assist employers in doing so, the Commission has also substantially revised and updated its sexual harassment code of practice, which is headed Sexual Harassment in the Workplace: A Code of Practice for Employers. This code was first released in 1996, and relaunched by Commissioner Goward in March this year. It is designed to act as a comprehensive guide for employers about developing and implementing preventative strategies to eradicate sexual harassment from the workplace.

The Code of Practice is based on a number of general principles of sexual harassment law summarised from the SDA and case law, so that employers have a clear overview of their legal obligations. For example, it explains:

  • what constitutes sexual harassment;
  • how employers can be liable for sexual harassment; and
  • how employers can avoid liability by taking all reasonable steps to prevent sexual harassment in their workplaces.

The Code of Practice also includes provides:

  • informative examples from the case law on sexual harassment, and common workplace situations where sexual harassment may occur; and
  • Step-by-step guidance for employers to formulate a written policy on sexual harassment, as well as a formal and informal complaints process for employees.

Commissioner Goward has also launched two posters on sexual harassment which are designed for schools and workplaces, encouraging victims of sexual harassment to "speak out" and perpetrators to "stop" their harassing behaviour.

The first is targeted at young women in schools, TAFEs and universities, and encourages young women who have experienced sexual harassment to speak out about it.

The second poster is aimed primarily at male perpetrators of workplace sexual harassment. It is designed to heighten awareness about the nature and impact of their conduct and warn them to stop their behaviour.

Copies of the publications and posters I have referred to are either available here today, or they can be accessed on the HREOC website.

In closing

In closing, I would like to highlight one of the emerging themes at the international level in the field of gender equity which has some resonance with the policies of the respective political leaders at the national level here in Australia.

As some of you may be aware, the theme for discussion at the recent 48th Session of the UN Commission on the Status of Women in New York, was the role of men and boys in achieving gender equality. HREOC, together with a number of other national human rights institutions, participated in a seminar panel that addressed this theme, emphasising how important it is that we (as a national human rights institution) engage with men and boys in addressing sexual harassment - particularly as men are still the key decision makers and holders of economic and organisational power.

This may be an obvious observation, but it is a reality that needs to be foremost in our minds when we are developing response strategies and preventative measures to combat sexual discrimination in the workplace. Education must remain the pillar of any preventative strategy, and our investment in education and awareness raising programs needs to be targeted across the community - not just at school and university students - and not just at women to the exclusion of men.

The last 20 years have shown us that all the legislation and case law in the world is not enough to stamp out workplace sexual harassment.

Ultimately, it is up to employers to ensure that there is no place for sexual harassment in their workplaces. Employers set the tone. They determine the workplace culture.

Prevention of harassment, especially sexual harassment, is crucial for workplaces and a workforce which prides itself on rewarding merit, refuses to tolerate discrimination and fosters gender equality.

Prevention is a great deal more difficult than implementing grievance procedures.

Thank you once again for the opportunity to make this presentation this morning, and please feel free to ask any questions or provide feedback in response.


1. (2002) EOC 93-227; [2002] FCA 939.
2. (2003) FMCA 160.
3. (2002) EOC 93-194; [2002] FMCA 31.
4. (2002) FMCA 122, digest of decision appears at (2002) EOC 93-229.
5. (2003) FMCA 209.
6. (2003) FMCA 375.
7. (2003) FMCA 584.
8. See SDA, ss 5, 6 and 7.
9. See SDA, ss7A and 14(3A).
10. See SDA, ss 5(1), 6(1), 7(1) and 7A.
11. See SDA, ss 5(1), 6(2) and 7(2).
12. See SDA, s 7B.
13. HREOC, Commissioner Evatt, 9 March 1998. Partially reported at (1998) EOC 92-910.
14. See paragraph 6.17.10, which does not appear in the reported version of this decision.
15. If evidence is needed, see the statistics referred to in Evans at [105].
16. See s.7B(2) of the SDA for the matters to be considered in applying the reasonableness test.
17. See pt II, div 3 of the SDA.
18. See sections 28B-28L of the SDA.
19. Bennett v Everitt (1988) EOC 92-244; Kiel v Weeks (1989) EOC 92-245; Horne v Press Clough Joint Venture (1994) EOC 92-556; Hopper v Mt Isa Mines (1997) EOC 92-879; Doyle v Riley (1995) EOC 92-748; Bebbington v Dove (1993) EOC 92-543; Hawkins v Malnet Pty Ltd (1995) EOC 92-767; G v R & Department of Health and Community Services (Unreported, HREOC, Sir Ronald Wilson, 17 September 1993); Djokic v Sinclair (1994) EOC 92-643; Hill v Water Resources Commission (1985) EOC 92-127; Freestone v Kozma (1989) EOC 92-249.
20. (2001) 163 FLR 58, 75 [84].
21. [2002] FMCA 81.
22. Ibid [81]-[85].
23. Horman v Distribution Group [2001] FMCA 52, [44], [64], citing with approval the decision of the New Zealand Employment Tribunal in L v M Ltd (1994) EOC 92-617; Wong v Su [2001] FMCA 108, [18]; Daley v Barrington [2003] FMCA 93, [33]-[34]; Font v Paspaley Pearls Pty Ltd [2002] FMCA 142, [130].
24. (1988) 80 ALR 1.
25. Ibid 5, cited with approval in Hall v Sheiban (1989) 20 FCR 217, 247 (Wilcox J).
26. (2001) 111 FCR 240.
27. Ibid 277 [107].
28. [2001] FMCA 52.
29. Ibid [64].
30. [2001] FMCA 108.
31. See Driver FM in Cooke v Plauen Holdings [2001] FMCA 91, [25], applying Hall v Sheiban (1989) 20 FCR 217 and Leslie v Graham (Unreported, HREOC, Commissioner Innes, 21 July 2000).

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