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This paper analyses the complex legal framework for sexual harassment at work in Australia and Québec using Peter Schuck’s (1992) definition of complexity and drawing on Alejandro Camacho and Robert Glicksman’s (2019) model of the dimensions of authority and how they combine with the different functions an authority carries out.
In both Australia and Québec, overlapping institutions and approaches can improve enforcement, especially when they are coordinated. overlap is less likely to improve matters if the focus is on standard-setting, where uniformity is important to ensure the clarity, transparency, and legitimacy of the rules for duty holders and workers.
Harmonisation of legal definitions of sexual harassment and timelines can mitigate the negative impact of the law’s complexity, as can dovetailing (specifying in one law how its provisions fit with the provisions of another law).
In terms of recourse and prevention of sexual harassment, some of the benefits of human rights expertise can sometimes be conserved even if there is centralised recourse under labour law. However, in both Australia and Québec, collaboration between human rights institutions and labour law institutions emerges as a major challenge. Empirical research is necessary to grasp the opportunities that fragmentation may provide to sexually harassed workers as compared to the barriers it creates.
Finally, both in Québec and Australia, legislative reform aimed at reducing legal complexity has simultaneously increased it. To prevent such “rebound” complexity, initiatives designed to reduce complexity must be examined with respect to the scope of the legislation as well as from the perspective of subject matter.
