We have a great law to tackle workplace sexual harassers. Pity it's never been used
Just days later, this masthead published an explosive exposé about the Merivale hospitality empire, alleging that its VIP customers routinely engaged in lewd and unwelcome sexualised behaviour towards its female staff. Swillhouse and Merivale have denied any wrongdoing.
In this same week, a new report by the Australian Human Rights Commission was released, highlighting the ongoing and seemingly intractable problem of sexual harassment. The problem is not confined to hospitality, but includes mining, media and the retail industries. Allegations against mining giants BHP and Rio Tinto include men urinating on women colleagues, sexual groping and masturbating in front of them.
But there is one glaring omission in the AHRC report. It is silent about what it, the relevant regulator, is doing about this endemic problem.
In late 2022, the Albanese government gave the AHRC significant responsibilities for preventing sexual harassment. It introduced a law which, for the first time, imposed a positive duty on employers to prevent sexual harassment and sex discrimination at work. At the time of its enactment, Kate Jenkins, the then-sex discrimination commissioner, hailed the positive duty law as 'the single most revolutionary change that will impact sexual harassment'.
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Since December 2023, the AHRC has been able to prosecute employers for failing to comply with that positive duty. To date, there has not been a single prosecution.
It would be a tragedy if the positive duty law became a 'dead letter' – a law that sits on the statute books both unloved and unused. Without either a carrot or a stick to motivate them, even the most committed – or the most problematic – employers are free to ignore the laws without consequence. A law that is on the books, but able to be routinely ignored, might as well not exist.
In a time of continuing, serious allegations of sexual harassment, we need this positive duty more than ever. Yet it took an inquiry by The Sydney Morning Herald and The Age, not the regulator, to reveal the alleged conduct at Swillhouse. It is taking the dedicated efforts of the individual women who reported it to try to raise enough funds to take legal action against their former employer.
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5 hours ago
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