Perverts and sleazoids prohibited: Passage of landmark Respect@Work bill
Significant positive obligations on employers in relation to sexual harassment and discrimination in the workplace following the introduction of the federal government's Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 have come into force. The landmark legislation implements several remaining recommendations from the Kate Jenkins Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, which has major implications for workplaces.
1. Positive Duty - Elimination of Prohibited Conduct
Of particular significance for employers is an amendment to the Sex Discrimination Act 1984 (Cth) which introduces a new positive duty.
Importantly, ALL employers and persons conducting a business or undertaking (PCBU) must now take reasonable and proportionate measures to eliminate, as far as possible:
discrimination on the ground of a person's sex;
sexual harassment, and harassment on the ground of sex;
conduct which subjects a person to a hostile workplace environment on the ground of sex; and
acts of victimisation relating to complaints, proceedings, assertions or allegations in relation to the above-listed conduct.
The positive duty on employers and PCBUs was a key recommendation of the Respect@Work Inquiry, in light of findings that 1 in 3 people have experienced workplace sexual harassment within the last five years.
This duty is far-reaching - it applies not only to employers in respect of employees, but to all PCBUs in respect of workers in their business or undertaking. All bodies that conduct a business or undertaking (such as companies, unincorporated associations, not-for-profit organisations, partnerships and even sole traders) are captured. Engagement in the above-listed conduct by not only employees, but also contractors, subcontractors, labour hire staff, apprentices, volunteers and agents, will need to be addressed. Critically, this conduct must be prevented, rather than just responded to if it occurs.
2. Express Prohibition - Hostile Workplace Environments
The new legislation makes it unlawful for a person to subject another person to a workplace environment which is "hostile on the ground of sex". A person (Person A) will have subjected another person (Person B) to such an environment if:
Person A engages in conduct in their workplace or that of Person B;
if Person B is present while the conduct occurs or thereafter; and
if a reasonable person would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the sex of Person B because of the sex of Person B or a characteristic that appertains generally or is imputed to persons of the sex of Person B.
Such conduct does not need to be directed at a specific person, provided it results in an offensive, intimidating and humiliating environment for people of Person B's sex.
3. Other Amendments
The new legislation will also implement other recommendations from the Respect@Work Inquiry, including by amending the Sex Discrimination Act to reduce the threshold for a finding of harassment on grounds of sex, and affording the Australian Human Rights Commission (AHRC) the function of assessing and enforcing compliance with the positive duty discussed above. These new powers of the AHRC will not commence until December 2023, in order to afford employers an opportunity to implement processes and measures to comply with the positive duty.
4. Going Forward
Employers and PCBUs should consider if their current workplace processes, procedures and systems are directed at preventing (rather than just responding to) not only sexual harassment, but also sex discrimination, a hostile workplace environment and acts of victimisation. To assist during this transition period, the AHRC and the Respect@Work Council (headed by Australia's Sex Discrimination Commissioner) has launched https://www.respectatwork.gov.au/ to provide resources for both employers and workers, including best-practice guides, training programs, workplace-assessment tools, information, videos and advice.
Don’t hesitate to get in touch if you have any questions or wish to discuss further.
Tagged: respect at workplace, sexual harassment, discrimmination