Sexual Harassment victims compensation

Sexual Harassment victims compensation – There will soon be an easier path for victims of workplace sexual harassment to pursue legal action against perpetrators. An amendment to the Australian Human Rights Commission Act will stop federal courts from ordering victims to pay the huge legal costs if they lose the litigation.

The Costs Protection Bill, (details here) that was first proposed in November 2023 was passed by both houses on 19 September 2024 and will act to remove the financial block for victims taking their perpetrators to court. Previously, a huge percentage of victims in Australia would avoid pursuing court action over fear of the huge adverse costs, also known as the other side’s legal bills.

The Costs Protection Bill is intended to protect applicants in anti-discrimination court proceedings from adverse costs orders when they are unsuccessful. An adverse costs order can have serious financial consequences for unsuccessful applicants who have to pay their own legal costs and the respondents’ costs.

According to research by the Australian Council of Trade Unions (ACTU) only 1 in 230,000 survivors of workplace sexual harassment bring proceedings to an Australian court,. This new amendment applies to all Commonwealth sexual harassment and anti-discrimination laws and will restrict courts from ordering applicants to pay respondents’ costs, except in limited cases.

This is part of the Respect@Work report 2020, and would achieve the objectives of recommendation 25 and  it is considered that the Bill amendment is step forward in making court processes for victims less daunting and far less financially prohibitive. Link to the Respect@Work National Enquiry Report 2020

The Bill addresses the finding of the National Inquiry that informed the Respect@Work Report that the current cost regime in the federal courts operates as a significant disincentive for applicants to pursuing sexual harassment matters under the Sex Discrimination Act.

The risk of being ordered to pay the costs of other parties to the proceedings can deter victim-survivors of sexual harassment and other forms of discrimination from commencing legal proceedings. This creates access to justice concerns, particularly for vulnerable members of the community. In response, the Respect@Work Report recommended that a cost protection provision be inserted in the AHRC Act to provide greater certainty for applicants.

This passing of this Bill may have the effect of potentially triggering and increasing the number of complaints taken to the Australian Human Rights Commission and to court and could result in an increase in compensation being ordered against employers where sexual harassment occurs in their workplace, especially those who have taken no proactive and preventative action to eliminate as far as possible workplace sexual harassment.

Sexual Harassment victims compensation  – Advice for employers 

Employers must remember that they must satisfy the positive duty relating to sex discrimination and sexual harassment that states that all employers ensure that they take all reasonable and proportionate measures to eliminate as far as possible sex discrimination including sexual harassment.

I recommend two things;

Firstly have policy supported by training that clearly outlines what sexual harassment is, that it is unlawful and what a person should do if they are subjected to or witness sexual harassment in the workplace.

It is important that the training should emphasise the employees should also be aware of the bystander effect and the cone of silence.

Please contact me if you would like more information about my Understanding Workplace Sexual Harassment training options & how to ensure that you are taking the necessary and proportionate steps to ensure that your employees do not engage in sexual harassment, know what to do if they are subjected to a witness sexual harassment and avoid the bystander effect or the cone of silence – Link here

The second thing is to have a trusted & effective reporting and investigation mechanism in the event that sexual harassment occurs in your workplace. If your HR professionals or managers are not fully conversant with best practice workplace investigation processes I recommend that you either outsource the investigation to a professional investigator or receive training in the best practice processes.

Please contact me if I can assist you in this area. The following links provide information on my training and investigation services.
Next open course – https://awpti.com.au/conducting-workplace-investigations-open-course/
internal training – https://awpti.com.au/conducting-workplace-investigations-full-course/

You don’t want to be the next organisation in the news relating to sexual harassment.