Preventing Sexual Harassment in Work: Exploring the Promise of Work Health and Safety Laws

(2019) 32(2) Australian Journal of Labour Law 219

31 Pages Posted: 28 Dec 2018 Last revised: 17 Jan 2020

See all articles by Belinda Smith

Belinda Smith

The University of Sydney Law School; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Melanie Schleiger

Independent

Liam Elphick

The University of Western Australia Law School; Melbourne Law School; La Trobe Law School; Berkeley Center on Comparative Equality and Anti-Discrimination Law

Date Written: 2019

Abstract

Despite a growing consensus that sexual harassment is wrong, it continues to be remarkably prevalent in Australian workplaces. Sex discrimination laws which were expressly designed to prohibit this behaviour have operated for several decades, yet the problem still persists. Anti-discrimination laws (ADL) have been effective to a point, but are limited by their individual and complaints-based regulatory framework. The question therefore arises: might other laws play a role in addressing this problem more effectively?

In this article we explore the promise of work health and safety (WHS) laws in addressing sexual harassment in work. WHS laws impose obligations to prevent harm to workplace participants, including psychological harm. Our thesis is that this harm-prevention approach can complement the existing ADL individual redress scheme and prove an effective tool at preventing sexual harassment by tackling its antecedents in workplace cultures. However the promise of WHS laws in preventing sexual harassment can only be realised if WHS agencies acknowledge this remit and are equipped to deal with it.

Keywords: sexual harassment, work health and safety law, anti-discrimination law, workplace, employment

JEL Classification: K31

Suggested Citation

Smith, Belinda M. and Schleiger, Melanie and Elphick, Liam, Preventing Sexual Harassment in Work: Exploring the Promise of Work Health and Safety Laws (2019). (2019) 32(2) Australian Journal of Labour Law 219, Available at SSRN: https://ssrn.com/abstract=3299784

Belinda M. Smith

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

Melanie Schleiger

Independent

Liam Elphick (Contact Author)

The University of Western Australia Law School ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

HOME PAGE: http://https://research-repository.uwa.edu.au/en/persons/liam-elphick

Melbourne Law School ( email )

185 Pelham Street
Melbourne, VIC 3010
Australia

HOME PAGE: http://https://law.unimelb.edu.au/students/grd/students/liam-elphick

La Trobe Law School ( email )

La Trobe University
Bundoora, VIC 3083 3142
Australia

HOME PAGE: http://https://scholars.latrobe.edu.au/display/lelphick

Berkeley Center on Comparative Equality and Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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