Laws for corporate whistleblowers need to be strengthened, while those who speak out should be rewarded for their efforts.
How many times have you read a story in the news about a whistleblower who spoke out about misconduct in their office, and ended up being hauled over the coals rather than rewarded? The answer: too many times.
Whistleblowers -- including women who speak out about sexual harassment -- play a key role in exposing wrongdoing and holding the powerful to account. Our laws, however, are lagging internationally in protecting those who come forward, sometimes at great personal and professional risk.
The Federal Government is currently legislating further whistleblower protections, and some of the changes are steps forward. But there are several urgent reforms that still need to be made.
One change is to reward whistleblowers for exposing misconduct. Financial compensation would go a long way in reducing the significant personal and professional burden that those who speak out often carry when they highlight misbehaviour.
Protections should also be strengthened for corporate whistleblowers, to bring them completely in line with those already in force in the public sector.
Time limits are an unnecessary barrier for sexual harassment victims in reporting inappropriate behaviour. They should be removed so more victims can come forward.
On paper, a six-month time limit for sexual harassment complaints to be lodged with the Australian Human Rights Commission (AHRC) might seem adequate. In reality, by the time a victim is ready to open up about their experiences, often months, and even years, have passed.
Longer and more reasonable time frames already exist for other employment law breaches (for example, six years for breach of contract cases) and there’s a good case to be made for extending or abolishing the AHRC’s six month limit to make a sexual harassment complaint.
The AHRC allows victims to take part in a confidential mediation with the parties involved. If a complaint is made after six months then the AHRC might refuse to deal with it.
Then complainants have to head to court to get redress (and this can only happen if the court grants leave to deal with the application even though it was made out of time). They may have to face their harasser for the first time in open court -- exacerbating their already traumatic situation.
By removing or increasing the time period for making a claim, victims can seek justice, including confidential mediation, quickly and when they are ready and strong enough to do so.
“Safer and more equal workplaces will benefit all Australians. But we still have a long way to go in the fight against harassment and gender inequality. We need women to feel they can speak out, and we need those with the power to help to step up.
“Change is possible, and governments, organisations, leaders within companies and individuals have the power to make this change happen.”
- Liberty Sanger, Principal, Board member and Chair of the Equal Workplaces Advisory Council Victoria
Employers should be required under the law to take all required steps to prevent sexual harassment by or of their staff.
You’ve been sexually harassed repeatedly, but you don’t know what to do next, and the perpetrator doesn’t even seem to realise or care that what they are doing is wrong. You want to speak out, but you are fearful of the consequences as you need your weekly paycheck to support your family.
This scenario may resonate with more of us than we might admit. At the moment, employers just need to show they’ve taken all reasonable steps to defend against a sexual harassment claim in order to duck liability.
If they are also required to take active, positive steps to prevent and reduce the risk of harassment, it could go a long way in helping companies increase internal awareness of what is unwanted behaviour. Support measures for victims to speak out safely could likewise be established.
The #MeToo movement has already had one key benefit -- it’s given a voice to victims. As more of them share their experiences publicly and privately, sometimes for the first time, people and companies will have a better understanding of what sexual harassment is and how damaging it can be.
Encouraging such awareness within organisations can help to reduce and end sexual harassment, and hold perpetrators to account.
Companies should be required to formally report harassment claims and statistics to their boards and to an external organisation.
We know sexual harassment is a problem in Australian workplaces, as organisations such as the AHRC and the Australian Bureau of Statistics conduct regular surveys. But what about individual companies? There’s no formal requirement for them to regularly report sexual harassment statistics and claims internally or externally.
Maurice Blackburn is calling for an expansion of reporting requirements so a company’s board and an external body such as the government’s Workplace Gender Equality Agency gets regular updates on sexual harassment incidents and claims.
If we make this reporting compulsory, we will have a growing pool of data that we can draw from to identify industries most affected by sexual harassment, allowing companies to work on their culture, reduce the number of victims and make workplaces safer, particularly for women.
In New South Wales, a damages cap that limits how much a victim can be compensated should be removed to bring it in line with the rest of Australia.
After months, even years, of sexual harassment, you are worn down, and battling anxiety, depression and stress. You dread the days when you have to go to work.
An extensive period of sexual harassment can hurt a victim physically and mentally, and affect their ability to make a living. That’s where financial compensation plays a key role in helping complainants get back on their feet.
There’s been an acknowledgment by the courts in recent years that higher compensation for victims of sexual harassment is needed. But in our most populous state, New South Wales, there’s an archaic cap on damages of $100,000 if a case is heard by the state-based anti-discrimination tribunal and not the AHRC.
It’s time to scrap this cap. All victims of sexual harassment should have the same opportunities to access financial compensation, regardless of where they live or work.
“The #metoo movement has given women a platform to blow the whistle on sexual harassment and assault. Together with an impressive array of investigative journalists, they have shone a powerful light on a persistently dark part of our culture, including the mistreatment of women in the workplace.
“It is early days, but it is to be hoped that this strong protest will produce meaningful change in the quest for true gender equality. In the Australian workplace, it must pave the way for a discussion on reforms needed to prevent harassment and to improve access to justice for all victims.”
- Josh Bornstein, National Head of Employment Law at Maurice Blackburn.
Make detailed notes as soon as you possibly can after the incident happens -- what happened, where and when it happened, and whether there were any witnesses. It’s important to get things down on paper as it will help in assessing the case and as often, people are so traumatised by such events that their memories fade.
However, not making detailed notes does not necessarily mean the complainant has no case. Lawyers can take a detailed statement from victims. A statement can also be made when making an application to the Australian Human Rights Commission (AHRC).
Report the incident to a manager or to the Human Resources department. Your employer should then properly and independently assess the allegations of sexual harassment and interview both the complainant and the alleged harasser. They should then form a view about the conduct, whether it was inappropriate and whether any disciplinary action should be taken.
This step is not compulsory but is strongly recommended, as making an internal complaint will help the AHRC know that the employer is on notice about the incident and will help them understand what steps, if any, an employer has taken to reduce the risk of sexual harassment in the workplace and deal with an individual’s complaint. In some circumstances, such as if the chief executive officer or managing director is the alleged perpetrator, you may have no choice but to go straight to the AHRC.
If reporting the incident internally fails to address your concerns or you don’t get the outcome you want, you could speak to your union or lawyer, and ultimately file a complaint with the AHRC.
“With the public attention that sexual harassment is getting, people are now coming forward who haven’t come forward in the past. We are seeing older allegations being aired by people that come to us and also publicly, as people feel that they can come forward and are not alone.
“The reason people will take more than six months to make a complaint is… they put up with it, they put up with it, they put up with it, they want their job, they’re scared that they’ll lose their job if they come forward, and then finally there will be some incident that is the straw that broke the camel’s back and they’ll feel like they might need help.”
- Alexandra Grayson, Principal of Employment Law at Maurice Blackburn