‘Respect at Work’ bill passes Australian Parliament, signalling a major step in preventing harassment in the workplace
On 30 September 2022, we reported on the details of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (the Bill) which proposed to amend the Sex Discrimination Act 1984 (Cth) (SD Act) and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) by implementing seven of the 55 recommendations from the Australian Human Rights Commission’s (AHRC) Respect@Work Report (see related article).
The Bill was passed by Federal Parliament on 28 November 2022 (the Act) with two significant changes to the original, namely:
In this article, Partner Andrew Tobin, Special Counsel Adele Garnett and Associate John Hickey outline the changes following the Act and how the shift in the existing legislative framework from reactive to preventative measures requires employers to do more to eliminate unlawful discriminatory conduct.
Positive duty to eliminate unlawful sex discrimination
Significantly, the Act amends the SD Act to introduce a positive duty on all employers to “take reasonable and proportionate measures” to eliminate, as far as possible, specified forms of unlawful sex discrimination including:
This change shifts the focus of employers from responding to discrimination and harassment that has already occurred to proactively preventing discrimination and harassment in workplaces to achieve compliance with the SD Act.
The Explanatory Memorandum states that the positive duty is intended to align with section 106 of the SD Act, which relates to the default vicarious liability of employers and principals for unlawful acts done by their employees or agents, unless they can show that they have taken “all reasonable steps” to prevent the conduct. However, it remains to be seen how the courts will interpret this in practice since the sections do not actually cross-refer to each other and the language is not the same (“reasonable and proportionate measures to eliminate” compared to “reasonable steps to prevent”).
Similar provisions are now appearing in state and territory based anti-discrimination legislation.
As noted earlier, this positive duty operates concurrently with the existing duties under work, health and safety laws at a federal, state and territory level, which require employers to provide a safe working environment for workers, so far as is reasonably practicable. It follows that all Australian employers must take positive steps to prevent discrimination and harassment in their workplaces, and treat it as a health and safety issue which needs to be risk assessed with strategies implemented which focus on prevention.
Enforcement of the positive duty
The Act also provides extended powers to the AHRC to monitor and assess compliance of employers with the new positive duty inserted into the SD Act.
The AHRC’s extended powers include:
Should an employer fail to comply with an order of the Court which directs them to comply with the AHRC’s compliance notice, the Court has the power to punish them for being in contempt of court. This power is a broad one and includes the power to fine or imprison.
The AHRC’s extended powers will not come into force until 12 months after the Act receives royal assent. This delay provides employers sufficient time to understand their obligations under the positive duty and implement changes, if necessary.
Subjecting a person to a hostile workplace environment on the ground of sex
The Act implements a new provision in the SD Act to prohibit conduct that subjects another person to a workplace environment that is hostile on the ground of sex.
Although the SD Act already captures unlawful conduct directed at a person that may result in a hostile workplace environment, this amendment extends the law such that conduct does not need to be directed at a specific person, it just needs to be offensive, intimidating or humiliating to a person because of their sex or a characteristic that appertains to or is imputed to a person of that sex.
Examples of conduct which may be considered “offensive, intimidating or humiliating” include:
The duty to eliminate “hostile work environments” also requires employers to prevent offensive conduct within their workplaces perpetrated by external influences (e.g., by members of the public or suppliers).
The circumstances to be considered when determining whether conduct is unlawful includes:
This aligns with other provisions in the SD Act by using existing terms and concepts, such as “offensive, intimidating or humiliating” and the reasonable person test applicable to the determination of whether particular conduct is objectively offensive.
Inquiries into systemic unlawful discrimination
The Act inserts a new provision in the AHRC Act to provide the AHRC with a broad inquiry function (broader than it currently has) to inquire into systemic unlawful discrimination or suspected systemic unlawful discrimination, on its own motion.
Once the AHRC has inquired into a matter, the AHRC may report to the Minister (currently the Hon Mark Dreyfus KC) in relation to the inquiry or/and publish a report in relation to the inquiry and if appropriate, make recommendations to address the issues identified. Unless taken further by a complainant, any report will not result in prosecution in the courts.
The Act also:
All of these laws, other than the compliance power of the AHRC, commence the day after royal assent (expected to be shortly). It has also been reported that the Federal Governments’ Fair Work Act 2009 amendments will be passed shortly, which will further change complaint mechanisms for sexual harassment – we will update on those changes shortly.
The shift in the existing legislative framework from reactive measures to preventative measures to eliminate, as far as possible, unlawful discriminatory conduct requires employers to do more than just implement another standard workplace policy and basic training (although these are an important starting point).
It requires a whole-of-business strategy, involving the board and senior management, which doesn’t just address obvious surface level issues, but also addresses underlying cultural and policy matters which affect women in the workplace, and demonstrate the importance of workplace equality.
The reporting of workplace sexual harassment remains alarmingly low at only 18% according to a very recent report, so it also requires reviewing the complaint management system to ensure it is easy for employees to report concerns, and there is a system in place to manage and investigate complaints. One way to assist in this is to provide a complaint hotline or whistleblower reporting service, such as the service HopgoodGanim Lawyers provides (further details here) which confidentially and anonymously takes complaints from employees and other stakeholders.
To hear more about the recent changes to the legal framework applicable to sexual harassment in Australia and the increasing tendency of Australian courts and tribunals to award and uphold significant sums of damages in such cases, please view our webinar: Confronting workplace sexual harassment head-on: A brave new world.
If you require any further information or assistance with reviewing existing sexual harassment policies and processes to ensure that your business is legally compliant, please contact our Workplace and Employment team at HopgoodGanim Lawyers.