Preventing and responding to sexual harassment in the APS

One in three Australians experience sexual harassment at work. Employees have also told us that sexual harassment has occurred in the Australian Public Service (APS) and it remains a present concern. It is therefore critical that the APS ensures that workplaces are safe, respectful and free from harassment, and the APS leads by example.  

Sexual harassment is often under-reported, so the true picture may not be known.

Few of us would argue that strengthening the prevention of and response to workplace sexual harassment is an unreasonable expectation.

In 2022, the Australian Human Rights Commission (AHRC) conducted the fifth national survey to investigate the prevalence, nature and reporting of sexual harassment in Australian workplaces. For the first time, the survey also asked about workers’ views on the actions taken by their employer to address workplace sexual harassment. Download the full report or view infographics detailing key findings and statistics.

Legislation

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (‘Respect at Work Act’) was passed by Parliament on 28 November 2022 and commenced on 13 December 2022 – a milestone in addressing workplace sexual harassment in Australia.

The Act introduces a positive duty requiring employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual and sex-based harassment, hostile work environments and victimisation, and confers new compliance and enforcement functions on the AHRC. Read the full article.

Under the APS Commissioner’s Directions 2022, there is also a requirement for Agency Heads to consult with or report to the Commissioner before entering into an agreement with an APS employee that includes a confidentiality or non-disclosure clause. Consultation is only required for agreements relating to sexual harassment. This is to ensure that there is accountability and assurance across the APS in the use of confidentiality and non-disclosure provisions in such agreements.

Sexual harassment is also inconsistent with APS employees’ and agency heads’ obligations under the APS Values, Employment Principles, and Code of Conduct, set out respectively in ss.10. 10A, and 13 of the Public Service Act 1999.

What do these changes mean for APS agencies?

Under the new legislation, employers will need to proactively take ‘reasonable and proportionate measures’ to eliminate sexual harassment. If the AHRC suspects an employer is not meeting this threshold it can initiate action to address it using its new compliance and enforcement powers.

Although there will be a 12-month transition period before the positive duty becomes enforceable, it is important for APS agencies to start implementing these changes now.

Key resources

The following are two excellent resources to support agencies to prevent sexual harassment in the workplace and provide support to employees. Check out the Respect@Work website and the resources offered by Comcare.

Creating safe, inclusive and respectful workplaces

The AHRC, together with the Respect@Work Council, launched the new Respect@Work website in late 2022 providing comprehensive information and resources to help organisations fulfil their obligations and create respectful workplaces that are free from harassment.

In an Australian first, the Respect@Work website is a one-stop-shop that brings together a comprehensive set of resources for employers and workers to address sexual harassment in the workplace. The Respect@Work website has resources for employers and workers, including training and guidance materials, workplace-assessment tools, information, videos and advice. It is the first time all this information has been hosted in a single place in Australia.

Workplace sexual harassment

Sexual harassment is a known workplace hazard that can cause psychological and physical harm. Employers are therefore already required to take steps to eliminate or minimise the risk of sexual harassment so far as is reasonable practicable.

It is also unlawful under the Sex Discrimination Act 1984 (Cth) and prohibited by state and territory anti-discrimination laws.

Comcare provides information and resources and training and education products focused on the prevention, management and reporting of workplace sexual harassment.