The Federal Government’s Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 was passed by the Senate on Monday, 28 November 2022. The Bill implements 7 of the 55 recommendations from the Respect@Work Report prepared by Sex Discrimination Commissioner, Kate Jenkins. Employers are advised to understand this Bill comprehensively as all of these changes, other than where explicitly mentioned, come into effect after it receives Royal Assent.
The Respect@Work Report followed a National Inquiry which found that 33% of people who had been in the workforce in the preceding five years had experienced workplace sexual harassment. The Bill emphasises the important role that employers must play to reduce this staggering statistic.
The new legislation is another step towards fulfilling the Federal Government’s commitment to implement all 55 changes recommended in the Report.
The key changes include:
- Introducing a positive duty for employers (or persons conducting a business or undertaking (PBCU)) to take reasonable and proportionate measures to eliminate workplace sexual harassment, victimisation, and sex discrimination;
- Granting the Australian Human Rights Commission new powers to enforce the positive duty to prevent sexual harassment and sex discrimination;
- Prohibiting a person from subjecting another to a hostile workplace environment on the ground of sex;
- Establishing cost protections in court proceedings – parties to bear their own costs, save for circumstances in which a court considers a costs order is justified; and
- Obligating federal public sector agencies to report to the Workplace Gender Equality Agency (‘WGEA’) annually.
Positive Duty
The Bill inserts a new provision into the Sex Discrimination Act 1984 (SD Act), requiring duty holders, (employers or PCBU’s), their employees, contractors, volunteers and other workers, as well as agents, to take all ‘reasonable and proportionate measures’ to eliminate, as far as possible, sexual harassment, discrimination on the ground of sex, and victimisation.
What “reasonable and proportionate measures” are will depend on the size, nature and circumstances of each business or undertaking. The duty holder’s resources (such as financial means), the practicability and costs of the steps taken by the duty holder to eliminate sexual harassment, discrimination on the grounds of sex, and victimisation, will also be considered to assess compliance.
The amendments also make it clear that people who experience victimisation can make an unlawful discrimination claim as well as a criminal complaint pursuant to the Age Discrimination Act 2004, Disability Discrimination Act 1992, and the Racial Discrimination Act 1975.
Enforcement of Duty
The Bill inserts new provisions into the Australian Human Rights Commission Act 1986 (AHRC Act) to confer new functions on the Commission to publish compliance guidelines, conduct research and promote understanding and acceptance with respect to the positive duty (outlined above). These new functions will commence the day after the changes to the AHRC Act receive royal assent.
Further amendments, which will commence 12 months after royal assent is received, give the Commission power to assess compliance with the positive duty set out above if it reasonably suspects non-compliance. The Commission will have the power to:
- conduct inquiries into a person’s compliance with the positive duty and provide recommendations to achieve compliance;
- give a compliance notice specifying the action that a person must take, or refrain from taking, to address their non-compliance;
- apply to the federal courts for an order to direct compliance with the compliance notice; and
- enter into enforceable undertakings.
Removing Hostile Work Environments
The Bill also amends the SD Act to prohibit conduct that subjects another person to a workplace environment that is hostile on the ground of sex.
A person will contravene this provision if a reasonable person would have anticipated the possibility of the person’s conduct resulting in a workplace environment that is offensive, intimidating or humiliating regarding the sex of a person, a characteristic generally appertained to, or imputed on, a person of that sex. This new provision aligns with existing definitions and concepts in the SD Act.
When assessing a contravention, factors including the seriousness, frequency, authority/role of the wrongdoer, and any other relevant circumstances will be taken into account.
Costs protection provisions
The Bill inserts a costs protection provision into the AHRC Act to provide for greater certainty in the costs associated with bringing an application to the federal courts. The Respect@Work Report flagged that the potential liability associated with costs orders discourages individuals from pursuing their sexual harassment claims in the federal courts.
The costs protections provide for a default approach that each party retains responsibility for their own costs. The federal courts still have discretion to make costs orders, however, they must consider a number of factors, including but not limited to the financial circumstances of the parties, their level of success during the proceedings, any offers made and the public importance of the issue.
Public sector reporting to WGEA
The Bill brings the Commonwealth public sector in line with the private sector by requiring the public sector to report annually to WGEA on six gender equality indicators.
Other
The Bill makes a range of other changes, including:
- Extending the current 6 month time limit in which the Commission can terminate complaints that are brought pursuant to the Age Discrimination Act 2004, Race Discrimination Act 1992, Disability Discrimination Act 1975 to 24 months after the incident occurs. This brings these acts in line with the amendments to the SD Act made by the Respect at Work Act 2021.
- Allowing unions to bring applications to the Federal Court on behalf of a worker after an application is terminated by the Commission.
- Amending the objects of the SD Act to include achieving ‘substantive equality between men and women’.
- Inserting a new provision into the AHRC Act to expand the Commission’s ability to conduct inquiries into unlawful discrimination when ‘desirable to do so’ in the eyes of the Commission.
What should employers do now?
Many employers already take positive steps on a regular basis to ensure they maintain a safe work environment. , However, the Respect@Work Bill, and particularly the positive duty that will be enshrined in the SD Act, serve as a timely reminder to employers that sexual harassment and sex-based discrimination are prevalent and serious issues in Australia. The changes in the Bill recognise that historically the law has not done enough to prevent sexual harassment and sex-based discrimination in workplaces and therefore employers, in complying with the new positive duty, should review the steps they are taking and consider whether they can do more.
The Workplace Relations, Employment and Safety Team at Russell Kennedy recommends that employers review and update their policies and procedures and provide updated training to employees to cover the changes and make clear the expectations for what is appropriate conduct in the workplace. Employers should scrutinise their practices and workplace culture and take extra steps such as conducting regular staff surveys, exit interviews, monitoring the workplace and taking action to improve workplace practices to meet these obligations.
How we can help?
If you require assistance with reviewing the steps your workplace is taking to prevent sexual harassment and sex-based discrimination, please contact a member from our Workplace Relations, Employment and Safety team.
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