Current approach

Employers report to WGEA on a small number of matters related to sex-based harassment and discrimination. This is set out in the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) at Gender Equality Indicator 6 (GEI 6). At present, employers report on:

• The existence of a sex-based harassment and discrimination prevention strategy or policy
• The inclusion of a grievance process in any sex-based harassment and discrimination prevention policy
• Workplace training, if any, for managers on sex-based harassment and discrimination, and
• The frequency of workplace training about sex-based harassment and discrimination.

WGEA provides guidance to employers on understanding sex-based harassment and discrimination in the WGEA Reporting Questionnaire and in its Employer Portal.

Sex-based harassment and discrimination is not one of the five GEIs listed in the Workplace Gender Equality Act (s.3(1)). However, the Act provides that the Minister may, by legislative instrument, specify ‘any other matters’ to be a ‘gender equality indicator’ (s.3(1)(f) and s.3(1A) in the Act). As noted above, sex-based harassment and discrimination is specified as GEI 6 in the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1).

Employer of Choice for Gender Equality (EOCGE) citation holders voluntarily report to WGEA whether specific matters related to ‘gender-based harassment and discrimination and sexual harassment complaints’ are reported to their key management personnel and governing body. These matters include:

• number and nature of complaints received
• process for responding to the complaint
• time taken to resolve the complaint
• outcomes for complainant and respondent
• any organisational change following the complaint, and
• complainant and respondent turnover.

The existence of sex-based harassment and discrimination policies and strategies is not reducing the prevalence of sexual harassment in Australian workplaces fast enough. WGEA data (2019-20) shows that almost all employers (98.6 per cent) have a formal policy or formal strategy on sex-based harassment and discrimination prevention. Almost all employers include a grievance process in these policies or strategies (97.8 per cent) and a large majority (88.5 per cent) provide training on this to managers. But the Australian Human Rights Commission found in its Fourth national survey on sexual harassment in Australian workplaces (2018) that 71 per cent of Australians have experienced sexual harassment at some point in their lives, and one third of Australians report experiencing sexual harassment in the workplace. More urgent action is needed to create workplaces free from harassment and discrimination.

Sexual harassment is not a women’s issue: it is a societal issue, which every Australian, and every Australian workplace, can contribute to addressing. Workplace sexual harassment is not inevitable. It is not acceptable. It is preventable …
Ultimately, a safe and harassment-free workplace is also a productive workplace.
Kate Jenkins, Sex Discrimination Commissioner, Respect@Work, March 2020

Proposed approach

Stakeholders provided extensive comments on sex-based harassment and discrimination, calling for the expansion of sex-based harassment and discrimination matters that employers report to WGEA. This included suggestions for WGEA’s reporting framework to measure and monitor sexual harassment, prevalence, prevention and responses.

As part of implementing Roadmap for Respect, which is the Government’s response to the Respect@Work report, the Respect@Work Council is overseeing the Attorney-General’s Department’s (AGD) development of indicators and methods for measuring and monitoring sexual harassment, prevention and response (Respect@Work recommendation 46). Also, the Respect@Work Council is overseeing WGEA’s work on how those good practice indicators for measuring and monitoring sexual harassment, prevalence, prevention and response may apply to reporting under the Workplace Gender Equality Act (Respect@Work recommendation 42).

Stakeholder feedback provided to the WGEA Review on sex-based discrimination and harassment should inform the Respect@Work Council’s work. This includes the Council’s work on indicators and methods for measuring and monitoring sexual harassment, prevention and response – and how those indicators may apply to reporting under Workplace Gender Equality Act. To assist Respect@Work implementation, the Respect@Work Council should take into account stakeholder feedback provided to the WGEA Review on sex-based harassment and discrimination including:

• the provision and frequency of workplace training on sex-based harassment and discrimination for all staff (as opposed to managers only which is currently the case), disaggregated by managers and non-managers
• the quantum of sex-based harassment and discrimination complaints received during the reporting period
• the outcomes of the sex-based harassment and discrimination complaints
• the use of non-disclosure agreements
• employers to evaluate the effectiveness of their sex-based harassment and discrimination prevention measures, and
• any additional indicators specified by the Respect@Work Council related to measuring and monitoring the prevalence, prevention, and responses to workplace sexual harassment.

As the Respect@Work Council is already overseeing work underway by AGD and WGEA – as part of implementing Roadmap for Respect – no change to current GEI 6 reporting requirements is recommended at this time. Proposals for reforms to GEI 6 are likely to flow from WGEA’s work implementing recommendation 42 of the Respect@Work report. Those proposals will be enhanced with the benefit of the submissions made to the WGEA Review.

Stakeholders strongly supported including sex-based harassment and discrimination as a gender equality indicator in the Workplace Gender Equality Act – as opposed to just under the relevant legislative instrument, which is currently the case.

In recognition that sex-based harassment and discrimination is a core gender equality standard, Recommendation 5.1 proposes legislative change to bring the Act and Instrument in line. It does not change reporting obligations.