This week marked the International Day of the Elimination of Violence Against Women. Against the backdrop of a year marred by high-profile cases of sexual harassment and gendered violence, this day offers the opportunity to reflect on how such cases are only the most visible face of what Sex Discrimination Commissioner Kate Jenkins has called an “endemic” culture that pervades all parts of society. It also offers the opportunity to consider what eliminating sexual harassment and other forms of gendered violence might look like, and what actions might bring that future into being.
Jenkins’ report on workplace sexual harassment, [email protected], was published eighteen months ago, presenting a comprehensive insight into the harmful impact that sexual harassment has on the lives of Australian workers. Michele O’Neil has summarised the report’s central finding as that “it is not a case of a few bad apples, but underlying cultural and structural issues” which perpetuate gendered violence, including sexual harassment.
Despite the report’s stark and sobering findings, the Morrison Government has consistently responded to [email protected] using its typical tactics – using selective language and spin to deflect attention from its responsibilities. More than18 months after receiving the report, it has pursued only the ‘low hanging fruit’ of the recommendations, putting the substantive reforms in the too-hard basket.
When finally addressing the report’s twelve recommendations on legislative reform, the Morrison Government opted to address only half of them in their Sex Discrimination and Fair Work ([email protected]) Amendment Bill which passed in September. These amendments make some small steps forward but leave employer obligations on sexual harassment unchanged.
Notably, the government has ignored the recommendation to require employers to “take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation, as far as possible”; placing a “positive duty” on employers to create safe workplaces. This recommendation encouraged a shift towards preventing sexual harassment, rather than purely prescribing ways of responding after it has already occurred.
This recommendation was excluded from the Bill on the basis that existing workplace health and safety structures “should be” sufficient for these purposes. This ignores the fact that current systems are not effectively preventing and curtailing these forms of violence and harassment, demonstrating that they are not fit for purpose. While the government has accepted the recommendation to expand the Fair Work Commission’s powers to issue “Stop Bullying” orders to include Stop Sexual Harassment orders, too many workers are excluded from these protections. The Government has ignored the recommendation to ensure that sexual harassment is expressly prohibited by the Fair Work Act and provide a quick and easy complaints process which covers all workers, including those who have been forced out of their workplaces due to sexual harassment.
The Morrison Government demonstrated its lack of commitment to women’s safety and economic security again, by opting for performative public displays over serious planning. The week after its underdeveloped legislative reforms passed Parliament, it held a “National Summit” on Women’s Safety, ostensibly with the goal of forming a “national plan”. Yet, as Michele O’Neil noted, the Summit excluded large groups of people who would be affected, and developed no such plan, with the Summit instead functioning as a “a carefully politically controlled event”. Unions and workers were not invited to participate.
O’Neil pointed out the central role of the “positive duty” recommendations of [email protected], noting that “[their] strength… is that they understand that sexual harassment and gendered violence at work flourishes because gender inequality is ignored, not understood or not seen as a priority.” In that sense, gendered and sexual violence flourish because they are permitted to do so – and, perhaps, through prioritising the appearance of action over meaningful responses.
As discussed in September’s Working Life, Jenkins’ report itself is a starting point; it acknowledges that gendered violence is interwoven with other forms of discrimination, abuse, and harm which are entrenched in Australian society and which shape workers’ experiences. While regulatory reform is crucial, workers acting collectively through their unions at work is key to making work safe and equal for women. To highlight just one example, close to 1.2 million Australian employees now have access to paid family and domestic violence leave as direct result of union action. Maintaining focus on workplace organising and action for gender equity, and refusing to accept defeat, can help bring into being that much-needed cultural transformation, as well as working towards legislative and electoral change.
 Social Work Innovation Research Living Space: Flinders University, Analysis of the Workplace Agreements Database for the Family and Domestic Violence Leave Review, 3 November 2021 at p 44