Respect@Work legislation has passed – what this means for workplaces
Background
On 28 November 2022, the Government passed the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, marking a commitment to implement the recommendations coming out of the 2020 Sex Discrimination Commissioner’s Respect@Work Report (the Report). The legislation will implement seven major recommendations coming out of the Report.
Given that the National Inquiry into Sexual Harassment in Australia Workplaces found that almost 2 in 5 women said they had experienced sexual harassment in the workplace in the last five years, the legislation aims to shift the focus away from reactive remedies to workplace sexual misconduct to proactive measures which create obligations on employers to prevent the misconduct in the first place. This will be more in line with how other work health and safety risks are currently managed. A rundown of each of the changes is below:
1) Prohibiting hostile work environments
An express prohibition will be inserted into the Sex Discrimination Act 1984 (Cth) (SD Act) designed to protect people from hostile workplace environments on the grounds of sex. The Report found that the risk of sexual harassment and discrimination is likely to be greater in a workplace that is sexually charged or hostile, such as through a culture of general sexual banter or displaying sexually inappropriate materials. Therefore, this inserted provision will prohibit conduct the subjects another person to a workplace environment that is hostile on the ground of sex. The test for ‘subjecting a person to a hostile workplace environment’ is the requirement that a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of a particular sex.
2) The Positive Duty on Employers
The “cornerstone” of this legislation according to Attorney-General Mark Dreyfus is the introduction of the positive duty on employers and persons conducting a business or undertaking (PCBUs) to take measures to eliminate sexual harassment, discrimination and victimisation in their workplace so far as is reasonably practical.
This was already in operation in Victoria through the Equal Opportunity Act 2010 (Vic), however now it will be applied Australia-wide, being inserted into the Sex Discrimination Act 1984 (Cth). The duty will require employers and PCBUs to ‘take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct’ such as sexual discrimination and harassment. The measures taken for prevention will of course be aimed at employers and PCBUs themselves, but also their employees, workers, agents and third parties where applicable. This aligns with section 106 of the Act relating to vicarious liability of employers; they will not be liable for the unlawful conduct of their employees or agents if they have taken ‘all reasonable steps’ to prevent their employees from engaging in the conduct.
Similarly, to the existing work health and safety framework which requires employers and PCBUs to ensure, so far as is reasonably practicable, the physical and psychological health and safety of workers, the reference to ‘reasonable’ will be dependent on the unique circumstances of the workplace. This will include the size, nature of business, resources, practicality, and costs associated with the preventative measures that should reasonably be put in place to eliminate the misconduct.
3) Enforcement of the positive duty
The legislation will also provide the Australian Human Rights Commission (AHRC) with the relevant power to enforce this new positive duty on employers and PCBUs. Broadly, the AHRC will have the following powers to ‘monitor and address’ compliance with the positive duty:
conducting inquiries into compliance and making recommendations to achieve compliance;
issuing compliance notices specifying action that an employer must take or refrain from taking;
applying to the Federal courts for an order to direct compliance with a notice; and
the ability to enter into enforceable undertakings.
As for when the AHRC can utilise these powers; it will be able to begin by inquiring into an employer or PCBUs compliance if it ‘reasonably suspects’ that they aren’t complying. This could be based on information or advice provided by other agencies or regulators, information from individuals who have been impacted, or from the media. Employers will have approximately 12 months to understand their obligations and implement any necessary changes before the AHRC’s new powers ‘to monitor and assess compliance’ kick in.
4) Systemic inquiries into discrimination
The AHRC will also be provided with a function allowing it to inquire into systemic unlawful discrimination, which is defined in the legislation as discrimination that ‘affects a class or group of persons’ and ‘is continuous, repetitive or forms a pattern’. The AHRC will be able to perform its systemic inquiry functions when requested to do so by the Minister or on its own motion when it considers it appropriate to do so.
5) Representative claims
Representative actions by bodies such as unions on behalf of affected persons will now be able to proceed to court where they are not resolved and terminated at the AHRC. Previously, where the action was not resolved at the AHRC, the representative body could not then initiate action in the Federal courts on behalf of the affected persons. This amendment will remove procedural barriers to provide a mechanism for a greater number of genuine cases to be heard and resolved.
6) Costs protections
The Report found that concerns about adverse costs for applicants seeking to resolve sexual harassment complaints through the courts was a major deterrence to going through this avenue. Therefore, the legislation will insert a costs protection provision into the AHRC Act to provide greater certainty about the costs that both applicants and respondents may face when legal action through the courts system is pursued. A ‘cost neutrality’ approach will be adopted where, as a default position, each party would bear their own costs in an unlawful discrimination proceeding.
7) Public sector gender reporting
In the same way that private entities are required to, the Commonwealth public sector will also be required to report to the Workplace Gender Equality Agency. This reporting is on six key indicators relating to the gender equality of the workplace, aiming to increase understanding of any inequalities so that they can be addressed.
Key Takeaways
The Respect@Work Report has caused a significant shift in how public policy and the legislative framework prevent and respond to issues of sexual discrimination and harassment in the workplace.
The Government’s intention is clear that sexual discrimination and harassment is a serious issue that should be easily preventable to ensure Australian workplaces are safe for everyone. Whilst there is still some time before this new legislation is fully enforced, it is vital that employers begin to review their current position regarding compliance with current sexual discrimination/harassment laws and these new laws but particularly the positive duty. Some ways employers can do this include:
Reviewing policies, codes of conduct and other relevant documentation so that a strong and clear message against sexual discrimination and harassment is evident;
Ensuring a complaints/grievance procedure is in place that deals with concerns in an effective and efficient way;
Leading the way with clear preventative and supportive actions from senior management;
Obtaining information to assess risks through consultation with employees at all levels; and
Organising training for employees at all levels to understand their obligations and the policies/procedures that apply.
If you require any assistance implementing changes in your workplace to comply with this new legislation or have any queries arising from this article, please contact:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
Sonia McCabe
Senior Associate
T 03 5226 8558
E: smccabe@ha.legal
Matthew Synoradzki
Graduate Lawyer
T 03 5226 8542
E msynoradzki@ha.legal
