Preventing Gender-based Violence and Harassment at Work: A Study of the Potential of New Regulatory Approaches

This study is concerned with the violence and harassment women experience at work because they are women – gender-based violence and harassment (GBVH). Anti-discrimination law has been the dominant regulatory tool used in Australia to respond to sexual harassment, one form of GBVH. Yet despite harassment in employment being unlawful under federal anti-discrimination law since 1984 it remains a persistent and prevalent work-related problem. Regulators, practitioners, and scholars alike now acknowledge that the Australian anti-discrimination approach is not fit for the purpose of preventing sexual harassment and other forms of GBVH. This thesis answers the call to investigate more effective regulation to address GBVH, informed by alternative approaches and theories to those that inform anti-discrimination law. Employing gender-regime theory, in particular the work of Acker, Connell, and Walby, the thesis uses a case study methodology to assess the implementation of three new approaches. First, at the global level, the International Labour Organization’s Violence and Harassment Convention 2019 (ILO C190) represents a new international consensus on normative standards for preventing and addressing violence and harassment, including GBVH in the world of work. It provides a broad framework for regulation that requires adaptation for implementation. Second, at the national level, the Respect@Work approach is currently being implemented across Australia. This approach has resulted in changes to anti-discrimination law and new rights in labour law. However, the Respect@Work approach centres anti-discrimination approaches, concentrates only on sexual harassment, and relies heavily on employer self-regulation. Third, in one jurisdiction in Australia, Victoria, the WHS regulator and the union movement have collaborated to treat gendered violence as a workplace hazard. Although such an approach has the benefit of building on existing WHS regulatory architecture, in practice this approach sees GBVH primarily as a cultural and behavioural problem, with less emphasis on its institutional and structural dimensions. Taking aspects of these three approaches, building on the framework of ILO C190, and addressing the key dimensions of gender as an institution, the thesis concludes by proposing a new approach to regulating to prevent GBVH at work. It attempts to address the key dimensions of the gender regimes at work which create and sustain the inequalities that working women experience, as well as other compounding and intersecting factors such as race, indigeneity, class, sexuality, disability, citizenship status, and precarity. The right to be free from all forms of GBVH is at the centre of this new approach. Regulatory mechanisms are proposed that support collective action, moving beyond employer self-regulation, to achieve gender-regime transformative goals. This transformative gender regimes approach offers a guide that regulatory bodies, policy makers and advocates for change can apply to design and evaluate policy and regulatory change in this important area.