The Federal Government is actively delivering on its election promise to implement all fifty-five recommendations of Sex Discrimination Commissioner Kate Jenkins’ 2020 Respect@Work Report.
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (the Act) passed both Houses of Parliament on 28 November 2022 and is due to receive Royal Assent shortly. The Act implements seven of the fifty-five recommendations of the Respect@Work Report and significantly strengthens the legal and regulatory framework surrounding the prevention of sex discrimination in the workplace.
We outline the key provisions of the Act below, as well as recommend some actions your business should start to consider taking now that the Act has been passed.
A positive duty to prevent sexual harassment in the workplace (Positive Duty)
The Act inserts a new provision in the Sex Discrimination Act 1984 (Cth) (SD Act) that introduces a new positive duty on all employers and Persons Conducting a Business or Undertaking to take “reasonable and proportionate measures” to eliminate unlawful sex discrimination, including: sexual harassment, victimisation, and hostile work environments (see below) so far as possible.
In considering whether a duty holder has taken “reasonable and proportionate” measures, matters such as the size, nature, and resources of the duty holder’s business or undertaking, as well as the practicability and cost of eliminating the conduct, will be taken into account.
Hostile working environments
The Act also inserts a new provision in the SD Act that prohibits conduct that subjects another person to a workplace environment that is hostile on the ground of sex.
The Act provides that a person subjects another person to a workplace environment that is hostile on the ground of sex if a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace being offensive, intimidating or humiliating to a person by reason of the sex of the person, or characteristics that generally appertain or are imputed to persons of the sex of the person. The circumstances to be considered when determining whether the conduct is unlawful include: the seriousness of the conduct, whether the conduct was continuous or repetitive, the role, influence or authority of the person engaging in the conduct, and any other relevant circumstance.
Changes to the powers and functions of the Australian Human Rights Commission
The Act also empowers the Australian Human Rights Commission (AHRC) to do several things to promote and enforce the Positive Duty. We understand the Federal Budget has allocated funds which may be used for this purpose. Specifically, the Act amends the Australian Human Rights Commission Act 1986 (Cth) by empowering the AHRC to:
- publish guidelines, promote public understanding, and undertake research in relation to the Positive Duty;
- make inquiries into and issue compliance notices in relation to a person’s compliance with the Positive Duty;
- apply to the Federal Circuit and Family Court of Australia for an order directing a person to comply with a compliance notice in relation to the Positive Duty; and
- unrelated to the Positive Duty, the Act empowers the AHRC to inquire into any matter that may relate to systemic unlawful discrimination (defined as “unlawful discrimination that: (a) affects a class or group of persons or (b) is continuous, repetitive or forms a pattern”).
Changes to legal proceedings
Lastly, the Act makes several further changes to the AHRC Act directed at ensuring access to justice for applicants who make claims under discrimination legislation. Specifically, the Act amends the AHRC Act by:
- allowing representative bodies to make representative applications in the Federal Courts on behalf of persons who have experienced unlawful discrimination. Previously, representative bodies were unable to initiate proceedings in the Federal Courts if the complaint had been terminated by the AHRC; and
- providing that the President of the AHRC has a discretion to terminate a complaint if the alleged unlawful conduct took place over 24 months ago (as opposed to the previous 6 months).
What should you do?
The focus of the Act is on preventing sexual harassment in the first instance, rather than seeking to address the issue once it has arisen which has been a recurring criticism of the current regime, as it puts the onus on the victim, and many victims do not report the sexual harassment.
The measures you should take depend on the size of your business and the resources available to you.
As a preliminary step, businesses should consider:
- ensuring the existence of a sexual harassment policy with which all workers are required to comply;
- updating any existing policies to reference the new obligations including a specific reference to hostile work environments;
- ensuring the comprehensive induction of new employees;
- regularly conducting sexual harassment training with your workforce from Board level down, including discussing the legislative amendments made by the Act, the kinds of behaviour that constitutes sexual harassment, and behaviour that is likely to foster a hostile working environment within the meaning of the Act;
- engaging in meaningful consultation with your workforce by extending the opportunity to provide feedback on the working environment and existing policies, procedures and training in relation to unlawful discrimination and sexual harassment;
- ensuring the complaint process is accessible, taken seriously, effective and provides several contact points;
- including metrics, prevention measures or initiatives concerning sexual harassment in managers’ and other relevant employees’ KPIs;
- enforcing any breaches promptly;
- regularly reviewing the system of policies and training to ensure they are up-to-date and represents best practice this should include by way of employee engagement surveys so that direct feedback is sought from the workplace participants; and
- fostering a respectful and inclusive culture which complies with the law and supports and protects bona fide complainants.
The Positive Duty is similar to the positive obligations imposed on duty holders by Work Health and Safety legislation. Employers should be taking positive steps to ensure that those processes and systems are directed to both prevent and respond to sexual harassment and that appropriate training is provided for all employees, senior managers and the Board.
HWLE Workplace Relations and Safety Partners Bede Gahan and Kathryn Dent will be hosting a webinar to discuss the Act and its practical impact in a webinar on 15 December 2022. Click here to RSVP.
This article was written by Kathryn Dent, Partner and Nicola Ray, Solicitor.