New changes to Sex Discrimination Act leave many volunteers behind

“It is time we support volunteers and ensure they are all protected from workplace sexual harassment.” 

Under new changes to the Sex Discrimination Act, some volunteers and unpaid workers will have federal legal protections against sexual harassment for the first time, but advocates say the new rules don’t apply to volunteer run organisations, leaving many without protection.

The changes, passed by the senate last week, mean that volunteers working for an organisation with paid employees will now have the legal right to make a complaint to the Australian Human Rights Commission (AHRC) about sexual harassment or sex-based discrimination. 

The term “employee” has been replaced with “worker” as defined in the Work Health and Safety Act, which means it now includes volunteers and unpaid workers – but only if there is a paid staff member in the organisation.

Prior to these changes, volunteers didn’t have any federal protection for sexual harassment, and were unable to go to the AHRC.

This meant volunteers had to rely on other legal avenues for help, such as state-based legislation which varies in effectiveness depending on where a person is volunteering.  

While volunteers in most states and territories are protected under equivalent legislation, those in the Northern Territory and Western Australia do not have any clear avenue for complaint or resolution. 

New changes still leave many behind

Advocates say that while the new protections for volunteers are a step in the right direction, the changes don’t completely fix the problem. 

Legal help will still not be available to people volunteering or doing unpaid work for “volunteer associations” (organisations without any paid employees). 

Mark Pearce, the CEO of Volunteering Australia, said that seeing as half of Australia’s charities are run entirely by volunteers, it was disappointing these reforms still left many volunteers with no protection.

“Volunteers support the nation every day and are needed now more than ever. It is time we support volunteers and ensure they are all protected from workplace sexual harassment,” Pearce said.

Read more: Volunteers Speak Out on Sexual Harassment in the Workplace

Mae Tanner, the manager of training and enterprise at Justice Connect, said that it only took having one paid staff member for an organisation to be brought under the act. 

“It might even be a part-time bookkeeper. But once an organisation has employed someone, they are brought under the act,” Tanner told Pro Bono News. 

But she said because Australia is a federation it needs the Commonwealth with states and territories to implement proper protections for volunteers. 

“Where there are gaps necessitated by our federal system, the states and territories could still come in and potentially fill those gaps as some have,” she said.

“Where there are gaps necessitated by the federal system that we have, the states and territories could still come in and potentially fill those gaps,” she said.

Changes fail to be proactive

The reforms have also been criticised for failing to include positive duty, which requires workplaces to take proactive steps to prevent and eliminate sexual harassment. 

Positive duty was one of the key recommendations of the Respect@Work report, released earlier in the year.   

Tanner said this instead put the burden of responsibility was on survivors of sexual harassment to make a complaint, rather than on the organisation to take reasonable steps to prevent the harassment from happening in the first place. 

“It’s important to have that positive duty because it helps create a culture where there are more expectations on workplaces to take concrete steps to eliminate sexual harassment,” she said.

“And so then what we see is better organisational policies, perhaps better training available, and the bar is lifted as to what’s expected of workers, consultants, and clients for those organisations.”

Currently, Victoria is the only state where employers have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible.

Organisations can take matter into their own hands 

Chief adviser of Justice Connect’s Not-for-profit Law Sue Woodward AM said that organisations that valued their volunteers didn’t have to wait for the law and could do practical things now. 

“They can work to a better level of practice than what the law requires of them,” she said. 

This includes organisations reviewing their sexual harassment policies, making sure everyone understands in a concrete way what sexual harassment is, as well as providing clear and safe pathways for people to complain internally.

Woodward said that particularly during COVID, where many organisations were facing declining numbers of volunteers with an increased need for services, it was more important than ever that volunteers were treated with the respect they deserved. 

“Volunteer workforces are the engine room of delivering so many crucial services,” she said.  

“We should be grateful for their service, not treat them as lesser.”