On 26 September 2022 the Federal Government introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (‘the Bill’), delivering the Albanese Government’s promise to prevent sexual harassment in the workplace.
In our earlier blog Sexual Harassment and Miscarriage Leave Changes now in Effect we discussed the findings made by the Sex Discrimination Commissioner Kate Jenkins in her landmark Respect@Work Report (‘the Report’) which was released in March 2020 following a national inquiry into sexual harassment in Australian workplaces. The Morrison Government subsequently implemented six of the recommendations made under the Report which saw the amendment of the Fair Work Act 2009 (Cth), the Sex Discrimination Act 1984 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).
The Bill will implement the remaining seven legislative recommendations made under the Report. We have discussed the key changes below.
The centerpiece of the Bill is the implementation of a ‘positive duty’ on employers to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination and victimisation in the workplace.
The positive duty will shift the burden from individuals making complaints to employers taking proactive and preventative action. This means that employers will now have an obligation to actively assess and evaluate whether they are meeting their obligations.
New Powers of the Australian Human Rights Commission
The Bill will strengthen the powers of the Australian Human Rights Commission (‘AHRC’) with new functions to assess and enforce compliance including the capacity to issue compliance notices to employers who are not meeting their obligations.
The AHRC will also have authority to inquire into actual or suspected systemic, unlawful discrimination in the workplace.
The Bill will also implement the following recommendations:
- The Sex Discrimination Act 1984 (Cth) will expressly prohibit conduct that results in a ‘hostile workplace environment’ on the basis of sex.
- Unions and other representative groups will be permitted to bring claims on behalf of employees who have experienced unlawful discrimination.
- A ‘costs protections’ provision will be inserted to provide greater certainty in relation to the cost of pursuing legal action.
- Commonwealth public sector organisations will be required to report against six gender equality indicators to the Workplace Gender Equality Agency.
The Minister for Employment and Workplace Relations, the Hon Tony Burke MP is separately progressing the inclusion of a prohibition on sexual harassment in the Fair Work Act 2009 (Cth).
What should employers do?
As a general rule, businesses should already have policies in place that allow them to effectively prevent and respond to sexual harassment, sex discrimination and victimisation in the workplace.
- A workplace policy on sexual harassment and sex discrimination would ideally address the following:
- outlining the conduct that constitutes sexual harassment, sex discrimination and victimisation
- make it clear that the conduct is unlawful and not tolerated in the workplace
- that disciplinary action will be taken against an employee who engages in unlawful conduct
- the procedures for reporting any such conduct that occurs
- the support available to victims of sexual harassment, sex disrimination and victimisation e.g., an Employee Assistance Program (EAP)
When it comes to taking ‘reasonable and proportionate measures’ to prevent this behaviour from occurring, employers must also consider:
- providing regular training and information on sexual harassment and sex discrimination to all staff and management, including senior management;
- actively encouraging appropriate conduct by all managers; and
- taking steps to create a positive workplace environment.
If you require assistance with any of the above matters please contact the Employment Innovations’ or EI Legal teams.
About EI Legal
EI Legal is a specialist employment law firm focused on providing comprehensive employment solutions to SMEs and corporate clients. At EI Legal, we live and breathe employment law. All our lawyers are specialist employment lawyers, rather than generalists who dabble in this area.
The information provided in these blog articles is general in nature and is not intended to substitute for professional/legal advice. If you are unsure about how this information applies to your specific situation we recommend you contact EI Legal for advice.