The Albanian government is being warned that a key change in a key bill aimed at modernizing laws against sexual harassment and discrimination risks undermining its positive impact.
More than 100 signatories to an open letter, including lawyers, academics and unions, have said proposed changes to the rules for paying legal fees in workplace harassment cases could discourage women from taking legal action and “undermine access to justice.” “.
Those warning about the changes include the Australian Discrimination Law Experts Group, ACTU, Rosie Batty, the Public Interest Advocacy Center and former top official Philip Flood.
Her letter was sent to Attorney General Mark Dreyfus and Women’s Secretary Katy Gallagher on Friday.
The Respect at Work Bill would update the 1984 Workplace Sexual Harassment and Discrimination Acts by implementing seven of the 55 recommendations of a national workplace sexual harassment inquiry led by Gender Discrimination Commissioner Kate Jenkins.
Amendments to the bill include requiring employers to take reasonable steps to eliminate sexual harassment and discrimination wherever possible and giving the Human Rights Commission new powers to enforce compliance.
However, the signatories warn that a new model for determining who bears the costs of court cases brought in response to sexual harassment will discourage women from filing lawsuits and reduce the compensation they would receive for doing so .
The bill would conduct discrimination cases on a no-cost basis, so individuals and their employers would be responsible for paying their own attorneys’ fees when filing or responding to a claim, unless the court orders otherwise.
The letter argues that the new cost approach will make it uneconomical for law firms to conduct cases with no profit and no fees, and class action lawsuits against employers will become unprofitable.
“The proposed model will ultimately make it more difficult for victims of sexual harassment to assert their legal rights,” the letter reads.
“A no-cost approach to a relationship marked by endemic inequality only serves to entrench that inequality.”
Complainants, the letter states, should only face adverse costs where they have acted improperly but, if successful, can recover the costs of prosecution, as is the case under the current whistleblower provisions.
“This model would recognize the significant inequality of resources between complainants in sexual harassment cases and their employers,” the letter reads.
“The law is a major step forward in addressing the scourge of sexual harassment in our workplaces.
“We ask you not to let an incorrect provision for costs weaken your positive effect.”
Under current law, women who successfully sue their employer recover most legal costs, but can have costs awarded if their lawsuit fails.
Commissioner Jenkins told ABC this week that the bill’s provision, which gives judges discretion, is an important step forward: “If it is in the interest of justice and the judge can examine the financial circumstances of the parties, the conduct of the Parties are checked whether someone has lost or won, so that, for example, a complainant has the opportunity to have his costs reimbursed.”
In 2018, one in three Australian workers had experienced sexual harassment at work in the past five years, but only 17 per cent of those who said they had been harassed at work made a complaint.