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Employer obligations in response to the Respect@Work legislation

22 September 2021

#Workplace Relations & Safety

Published by:

Olivia Lawrence

Employer obligations in response to the Respect@Work legislation

The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Act) received Royal Assent on 10 September 2021 and commenced on 11 September 2021.

The Act aims to combat the prevalence of sexual harassment in Australia by clarifying and simplifying sexual harassment laws and encouraging meaningful cultural change in workplaces. To achieve this, the Act introduces some of the recommendations made in the Australian Human Rights Commission (AHRC) report, ‘Respect@Work: A National Inquiry into Sexual Harassment in the Australian Workplace’.

Employers have a positive obligation to prevent sexual harassment from occurring. This article will outline six steps employers should consider in response to the Act and prevent sexual harassment in their workplace. 

Major changes

The Act has remained predominately unchanged since its introduction on 24 June 2021. The Act amends the Fair Work Act 2009 (Cth) (FW Act), Sex Discrimination Act 1984 (Cth) (SD Act) and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

The major changes include:

  • compassionate leave for miscarriages
  • “stop sexual harassment orders” available in the Fair Work Commission (FWC), commencing 11 November 2021
  • section 28AA will be introduced into the SD Act prohibiting harassment on the ground of sex
  • sexual harassment is a “valid reason” for dismissal under the FW Act.

For more information on all the legislative changes and background to the Act, see our article, ‘Government introduces Respect@Work legislation’.

Responding to the changes

The commencement of the Act allows employers to develop strategies to prevent sexual harassment. The following steps will assist employers in creating a safe workplace:

1. Review your workplace culture

An effective workplace culture is fundamental to preventing sexual harassment. Therefore, employers need to understand their culture in order to create targeted strategies to prevent sexual harassment.

A culture founded on mutual respect and acceptable workplace behaviour is key to ensuring a safe workplace. Employers should review and critically assess their culture. For example, employers should observe how managers, supervisors and workers interact with each other. Other sources of data such as exit interviews given by former staff and/or confidential workplace surveys may also shed light on workplace behaviour.

While overt forms of sexual harassment are easily identified, employers should observe interactions between colleagues for more subtle forms of sexual harassment. More subtle sexual harassment, such as crude language or sexist remarks, can constitute either sexual harassment or harassment on the grounds of sex (which is prohibited under the new section 28AA in the SD Act).

Section 28AA “harassment on the grounds of sex" captures behaviour such as:

  • asking intrusive personal questions based on a person’s sex
  • making inappropriate comments and jokes to a person based on their sex
  • displaying images or materials that are sexist, misogynistic or misandrist.

Under the Act, an employer can be ancillary liable if they “cause, instruct, induce, aid or permit” another person to do an unlawful act of discrimination, including harassment on the grounds of sex or sexual harassment.

2. Create preventative strategies  

The #MeToo movement has brought company attitudes about sexual harassment into the public conversation.

The way a company responds to and prevents sexual harassment can directly impact the company’s reputation. As such, employers should ensure the company’s position on sexual harassment is preventative, not reactive. This includes ensuring everyone in the organisation understands their duties and what constitutes sexual harassment, including senior executives and board members.

3. Update and review workplace policies

Employers should review and identify gaps within workplace policies. Employers should ensure policies address the changes in the Act, meet existing statutory obligations and AHRC guidelines. As a best practice, policies should be reviewed on a yearly basis. Employers should consider obtaining legal advice to ensure their policies meet all statutory obligations and guidelines.

Employers should review any:

  • appropriate workplace behaviour or sexual harassment policies to ensure they extend to “workers”, such as contractors and volunteers
  • leave policies, which should include compassionate leave for miscarriages to allow full-time and part-time employees to take up to two days of paid leave (unpaid for casuals) if the employee, employee’s spouse or de facto partner has a miscarriage
  • grievance or disciplinary policies, which should clearly state that sexual harassment constitutes serious misconduct and is a valid reason for dismissal.

4. Review reporting procedures 

Employers should ensure that reporting of sexual harassment is encouraged.

The AHRC’s 2018 survey found that only 17 per cent of people who experience sexual harassment report it. As the majority of sexual harassment cases are not reported, employers should not take a lack of reporting at face value, but rather, they should critically reflect on sexual harassment reporting policies and practices.  

Employers should ensure workers know how to report sexual harassment and are provided with a range of mechanisms to report unwanted conduct. Employers should also conduct training for those who might receive sexual harassment complaints. It is important that these individuals know how to correctly respond and provide support.

Any complaint of sexual harassment should be dealt with promptly, and employers should ensure the worker is protected from victimisation, such as bullying or intimidation.

5. Educate and train all employers

Training and educating all workers is a key component to prevent sexual harassment. Training should be provided to workers at all levels and in a form that all workers can understand. Employers should consider running targeted training sessions based on a worker’s seniority and responsibility. As a best practice, training seminars should be compulsory and run once a year. 

6. Discharge your positive duty

During the development of the Act, a point of contention was whether the SD Act should be amended to include a positive duty on employers to take reasonable steps to eliminate sexual harassment in the workplace. The Labour and Green Senators raised this amendment during the Senate Debate, but the amendment failed after a 12-12 tied vote. The Federal Government explained that they would not introduce a positive duty because it already exists under the model Work Health and Safety Legislation (WHS Legislation).

Under WHS Legislation, employers have a positive duty to eliminate the risk of sexual harassment, so far as reasonably practicable. If eliminating the risk of sexual harassment is not practical, an employer must minimise the risk so far as reasonably practical. In January 2021, SafeWork Australia released a Preventing Workplace Sexual Harassment Guide to assist employers in meeting their obligations under WHS Legislation.

To satisfy an employers’ safety duty, employers must put in place control measures to eliminate or, if not possible, minimise the risk of sexual harassment. Therefore, employers must implement higher order controls that eliminate or otherwise minimise the risk.

Control measures will differ depending on the nature of the business, its associated risks and any other relevant factors. Employers should seek specific legal advice to identify the necessary control measures to help them meet their safety duty.

Some control measures may include:

  • reviewing the physical work environment, including the layout of the workspace and installing surveillance in common areas for safety and security
  • implementing policies which set out standards of behaviour and address any power imbalances
  • encourage reporting through policies, training and open dialogue
  • implementing training for all employers, including supervisors and managers.

Control measures should be reviewed regularly.

Holding Redlich can assist employers with reviewing policies, running training seminars and can provide general advice on sexual harassment and discrimination laws. If you have any questions, please speak to us or contact us here.

Authors: Louise Rumble, Jennifer van Bronswijk & Olivia Lawrence

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Olivia Lawrence

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