Sadly, Kate Jenkins does not recommend banning the human resources department.
Jenkins, the Sex Discrimination Commissioner, handed down her report from the National Inquiry into Sexual Harassment in Australian Workplaces on Thursday, and there are at least 55 good ideas about how to stop the systematic sexual harassment of women (and some men) at work.
Jenkins could not recommend the systematic abandonment of HR in companies across Australia, even though time and time again they have been complicit in supporting the harasser. But she has a clear message for employers: you must lift your game. Too much responsibility is on the shoulders of individuals to stand up for themselves. It is too hard to stand up for yourself when it's not only your harasser who has power over you, but his array of institutional structures making it nigh impossible to be heard fairly. No wonder most of us who experience sexual harassment at work or at work-related events never, ever report it. The structures work against us.
Remember Catherine Marriott? In 2018, the former West Australian Rural Woman of the Year went public with her sexual harassment allegation against Barnaby Joyce. It led to nothing. As she told the ABC at the time, "the [Nationals] never had the external processes in place to deal with a complaint of sexual harassment by a Member of Parliament". Or Amy Taeuber, the young Channel Seven cadet marched from the workplace after she complained about the behaviour of a male colleague. Paula McDonald from QUT examined a six-month period of complaints to Australia's nine human rights commissions and, overwhelmingly, the issue was this: employers sought to get rid of complainants instead of the offenders.
The same employers, the ones who want to get rid of complainants, the ones who whine about awards being too difficult to manage, make the same complaints about the processes to deal with sexual harassment.
We haven't had the opportunity in Australia to bring many sexual harassers to account. We haven't had our Harvey Weinstein moment.
Jenkins has the makings of an excellent idea here in her report. She recommends the establishment of a Workplace Sexual Harassment Council, to be chaired by the Sex Discrimination Commissioner. We need this; we need a body to appropriately manage the way all the systems and processes work together. But any council needs to go one step further - it must be more than an opportunity for further chat. Jenkins has suggested the council's membership include representatives of the Fair Work Commission (although let's keep deputy commissioner Gerard Boyce, he of the scantily clad figurines, well away from it), the Fair Work Ombudsman, Safe Work Australia and the Heads of Workplace Safety Authorities, the Heads of Workers' Compensation Authorities, and the Australian Council of Human Rights Authorities.
In Jenkins's own discreet way, perhaps she is signalling a shift we must make. Sexual harassment claims must be dealt with by an external arbitrator. The Fair Work Act should be reformed to include a way for the Fair Work Commission to deal with both sexual harassment and sex discrimination claims. Victims, either as individuals or with union representation, should be able to seek an urgent stop order against the behaviour and seek conciliation first, or if that doesn't work then head to arbitration.
The work of the council would lead to a new legal and regulatory framework, which would both streamline and clarify the issue. Jenkins recommends changes to the Fair Work Act and to the Sex Discrimination Act to make sure we all understand exactly what we are dealing with. For example, she says we need a "stop sexual harassment order" equivalent to the "stop bullying order" in the Fair Work Act. The report recommends a range of amendments to the act to comprehensively address sexual harassment. This should be consistent with the Safe Work Act and the Sex Discrimination Act. These three systems should work together.
Yet there can be no such framework, no change of laws, without legally enforceable measures. The report has gone some way to addressing the lack of specificity in our current laws, but laws are one thing. Those who sexually harass must be punished. Right now, those harassers are protected by non-disclosure agreements (NDAs) and allowed to continue to ply their harassment in workplace after workplace. As the report says, NDAs contribute to a culture of silence which "disempowers victims, covers up unlawful conduct and facilitates repeat offending". They make the power imbalance worse.
Importantly, the report also recommends the protection of alleged victims of sexual harassment who are witnesses in civil proceedings, such as defamation proceedings. It makes a raft of suggestions, including consistent state and territory legislation governing defamation proceedings. There would be a standard direction or presumption in favour of confidentiality; and suppression or non-publication of witness details in any defamation court proceeding where the defamatory material includes allegations of sexual harassment.
This would make such a huge difference.
We haven't had the opportunity in Australia to bring many sexual harassers to account. We haven't had our Harvey Weinstein moment. Acting on this report's recommendations would make that possible.
Yes, it's terrific to get compensation to pay for the pain of the past, and it's good to see abusers finally punished. But I swear to God, how much better would it be if we could stop this behaviour forever?
- Jenna Price is an academic at the University of Technology Sydney and a regular columnist.