Respect at Work laws introduced A positive duty to prevent sexual harassment

What you need to know

• Earlier this year, the Federal Government committed to fully implementing all 55 recommendations of the Australian Human Rights Commission's Respect@Work Report and legislating to strengthen laws that prevent sexual harassment.
• Further to that commitment, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 was introduced on 27 September 2022, which seeks to implement a further seven of the 55 recommendations.
• If passed it will, amongst other things, introduce a positive duty on employers to take reasonable and proportionate measures to eliminate workplace sexual harassment, victimisation and sex discrimination as far as possible, and give the AHRC power to enforce this.
• A number of similar legislative changes have been proposed at a state level.

What you need to do

• Australian employers already have obligations under work health and safety legislation to ensure workers are not exposed to risk from sexual harassment.  Sexual harassment and sex discrimination are also unlawful under discrimination legislation.
• Employers should be taking action now to:
  • consider sexual harassment in the workplace as both an employment/discrimination issue, and as a work health and safety issue;
  • have a medium and long term focus and plan on how these issues will be dealt with and how the risk will be managed, as opposed to merely having a short term "reactive" response when issues arise; and
  • implement robust measures to prevent and respond to sexual harassment in the workplace. These measures must go beyond updating policies and procedures and online compliance training.

Anti-Discrimination and Human Rights Legislation Amendment (Respect At Work) Bill 2022

The bill was introduced on 27 September 2022 and if passed, will implement a further seven of the 55 recommendations from the Respect@Work Report (see our Alert regarding the previous legislative response).

Summary of key changes 

The proposed amendments include:

• A positive duty to be imposed on employers to take reasonable and proportionate measures to eliminate workplace sexual harassment, victimisation and sex discrimination as far as possible;
• New powers for the Australian Human Rights Commission to assess and enforce compliance;
• A prohibition on conduct that subjects another person to a workplace environment that is hostile on the ground of sex;
• Introducing "cost neutrality" cost protection provisions for complainants; and
• Requiring Commonwealth public sector organisations to report to the Workplace Gender Equality Agency.

Positive duty

• If passed, this will place an onus on employers to take "reasonable and proportionate" measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.  The duty will extend to conduct by third parties such as customers or clients.
• The matters to be considered when determining whether the employer is complying with the positive duty include:
  • the size, nature and circumstances of the business or undertaking;
  • the duty holder’s resources, whether financial or otherwise; and
  • the practicability and costs associated with the steps.

Amendments to the AHRC Act

Amendments to the AHRC Act will enable the Commission to assess and enforce engagement and compliance with the new positive duty on employers.

• Powers of the AHRC will include:
  • conducting inquiries into a person’s compliance with the positive duty and provide recommendations to achieve compliance;
  • issuing a compliance notice specifying the action that a person must take, or refrain from taking, to address their non-compliance;
  • applying to the federal courts for an order to direct compliance with the compliance notice; and
  • enter into enforceable undertakings with duty holders in accordance with the Regulatory Powers Act (Cth).
• The AHRC will be able to initiate an inquiry into a person's compliance if it "reasonably suspects" non-compliance.
• These new functions will commence 12 months after Royal Assent to provide employers sufficient time to understand their obligations and implement necessary changes.

The proposed amendments to the AHRC Act also provide the AHRC with an enhanced, broad inquiry function into systemic unlawful discrimination.

• "Systemic Unlawful Discrimination" is defined as unlawful discrimination that "affects a class or group of persons" and "is continuous, repetitive or forms a pattern".
• The AHRC will be able to inquire into any matter relating to systemic unlawful discrimination or suspected systemic unlawful discrimination, including conduct within individual businesses or across a broader industry or sector.
• The AHRC will be able to commence an inquiry on its own initiative or at the request of the Minister.

The proposed amendments also provide for representative bodies, such as unions, to make applications on behalf of affected persons. 

A cost protection provision has been proposed, which is designed to provide certainty for applicants:

• The amendment is designed to reduce the disincentive to applicants considering pursuing matters and to create flexibility for courts to award costs in certain circumstances.
• The 'cost neutrality' approach provides that each party bears their own costs in making or responding to an application.  The courts are to retain a discretion to make other costs orders where they consider it just to do so. 

Subjecting a person to a hostile workplace environment on the ground of sex

The bill also includes a proposed amendment to the Sex Discrimination Act 1984 to insert a prohibition on conduct that subjects another person to a workplace environment that is hostile on the ground of sex.

• Subjecting a person to a hostile workplace environment includes a requirement that a reasonable person would have anticipated the possibility of the conduct being offensive, intimidating or humiliating to someone by reason of their sex or characteristics that generally appertain or are imputed to persons of their sex.
• The circumstances to be considered when determining whether 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

State-based legislative amendments

In addition to numerous reviews into these issues in a number of states and territories, similar amendments have been proposed to anti-discrimination legislation at the state level.

In light of the proposed amendments at both a state and federal level, employers should be taking positive steps to ensure that their processes and systems are directed at both preventing and responding to sexual harassment. These changes should go beyond updating policies and procedures and online compliance training to take account of both legislative change and compliance, and changing societal views.

Authors: Tamara Lutvey, Partner, Wyatt Cook-Revell, Graduate, Claudia Rowe, Graduate