05 October 2022
On 27 September 2022, the Federal Government introduced to parliament the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Bill). The Bill proposes to introduce a further seven recommendations from Commissioner Kate Jenkins’ ‘Respect@Work: National Inquiry into Sexual Harassment in the Workplace (2020)’ (Respect@Work Report), being Recommendations 16, 17, 18 19, 23, 25 and 43.
Employers should particularly take note of the proposed introduction of a positive duty for employers to prevent sexual harassment in the workplace under the Sex Discrimination Act 1984 (Cth) (SD Act) and the proposed new powers for the Australian Human Rights Commission (AHRC) under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
The Bill has now been referred to the Senate Legal and Constitutional Affairs Legislation Committee (Senate Committee), who are due to produce a report with a recommendation for the Bill by 3 November 2022 (Senate Committee’s Report).
This article outlines the proposed changes.
For background on the previous Government’s Roadmap to implementing the recommendations of the Respect@Work Report, please see our previous article ‘Changes to sexual harassment legislation – how can you prepare?’.
We set out the key proposed new provisions below.
1. A prohibition on conduct that subjects another person to a workplace environment that is hostile on the ground of sex (implementing Recommendation 16(c) of the Respect@Work Report).
The Bill proposes to introduce new section 28M under the SD Act, making it unlawful for a person to subject another person to a workplace environment that is hostile on the grounds of sex.
The Bill provides that a workplace environment is “hostile on the grounds of sex” if, a reasonable person having regard to all the circumstances, 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 the relevant individual.
The provision does not require the conduct to be directed towards a particular person and is intended to capture sexually charged or hostile work environments. The Explanatory Memorandum (EM) explains that “conduct such as displaying obscene or pornographic materials, general sexual banter, or innuendo and offensive jokes can result in people of one sex feeling unwelcome or excluded by the general environment. The existence of these environments can increase the risk of people experiencing other forms of unlawful discrimination, such as sexual harassment.”
2. A positive duty for employers to take reasonable and proportionate measures to eliminate sexual harassment, harassment on the grounds of sex, hostile workplace environments and victimisation (implementing Recommendation 17 of the Respect@Work Report).
Employers already have a positive duty under work health and safety legislation 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. Employers may also be vicariously liable under the SD Act if they did not take “all reasonable steps” to prevent the conduct.
Notwithstanding the existing framework, the Respect@Work Report observed that the current legal framework is not effectively preventing sexual harassment because it is focused on addressing and responding to conduct that has already occurred. This amendment is intended to shift the focus by requiring employers and “persons conducting a business or undertaking” (PCBUs), which is a concept adapted from safety legislation to proactively prevent discrimination and harassment in their workplaces in order to achieve compliance with the SD Act.
The Bill proposes to introduce new section 47C under the SD Act to clarify and reinforce that a positive duty exists for employers. The EM states that the proposed section “would require measures be taken to prevent this conduct being engaged in by duty holders themselves, as well as their employees, workers and agents, and third parties, where applicable. This may involve implementing policies and procedures, collecting and monitoring data, providing appropriate support to workers and employees, and delivering training and education on a regular basis.”
The EM further states that the meaning of “reasonable and proportionate” will vary depending on the particular circumstances. The Bill provides that the matters to be considered when determining whether the duty holder is complying with the positive duty include:
These considerations would ensure that the positive duty is adaptable and can be applied by all employers and PCBUs.
3. Granting powers to the AHRC to enforce compliance with the positive duty (implementing Recommendation 18 of the Respect@Work Report).
The Bill proposes to introduce a new section 35B under the AHRC Act, which would give the AHRC the power to inquire into and assess compliance with the employer’s positive duty, in circumstances where the AHRC reasonably suspects that the business is not complying.
The Bill also proposes to confer a number of other new functions on the AHRC, including functions to:
These powers are proposed to be delayed and will commence 12 months after the Bill receives royal assent. This will afford employers the opportunity to implement any necessary changes to comply with the positive duty. It would also enable the AHRC to prepare and publish guidance materials on the positive duty and establish its new compliance functions.
4. Powers granted to the AHRC to inquire into systemic unlawful discrimination (implementing Recommendation 19 of the Respect@Work Report).
The Respect@Work Report found that "there are significant cultural and systemic factors that drive sexual harassment in the workplace, and that addressing these drivers can be challenging”. The Bill proposes to define ‘systemic unlawful discrimination’ to mean unlawful discrimination that “affects a class or group of persons” and “is continuous, repetitive or forms a pattern”. The Bill proposes to deal with systemic unlawful discrimination by enhancing the AHRC’s power to inquire into the systemic issues through introducing section 35L. This section gives the AHRC the power to inquire into any matter that may relate to systemic unlawful discrimination or suspected systemic unlawful discrimination.
5. Lowering the threshold of harassment on the grounds of sex (implementing recommendation 16(b) of the Respect@Work Report).
The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 introduced section 28AA, which prohibits harassment on the grounds of sex.
The threshold for harassment on the grounds of sex is “unwelcome conduct of a seriously demeaning nature”. The Bill proposes to remove the word “seriously” to lower the threshold. The EM says, “this would ensure that the provision does not impose an unnecessarily high threshold on applicants and implement the intent of recommendation 16(b)”.
6. Proceedings brought under the AHRC Act to be a “no costs” jurisdiction (implementing Recommendation 25 of the Respect@Work Report).
The Bill proposes to introduce a new section 46PSA under the AHRC Act, which would mean parties to a proceeding would bear their own costs, unless the court considers there are circumstances that justify an order for costs where the court determines it would be just to do so.
In considering whether to depart from the default position, the Bill proposes factors that the federal courts must consider, including the financial circumstances of each of the parties to the proceedings and whether any party to the proceedings has been wholly unsuccessful in the proceedings.
This cost model differs from section 570 of the Fair Work Act 2009 (Cth). Under section 570, a court can only award costs if a court is satisfied that the party instituted the proceedings vexatiously or without cause, or if the court is satisfied that a party’s unreasonable act or omission caused the other party to incur costs. Under the proposed new section 46PSA, a court would have more flexibility to award costs where it considers it appropriate.
7. Extension of the time limit for commencing a complaint
The Bill also proposes to amend the AHRC Act with the effect that the time limit for a complaint under the Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth) and Racial Discrimination 1975 (Cth) would be extended from six months to 24 months after the alleged acts, omissions or practices took place, consistent with the effect of the existing provisions on the timeframes for making complaints under the SD Act.
As we await the Senate Committee’s Report and these proposed changes, employers should consider taking the following steps, particularly in light of the proposed new provisions introducing an express positive duty on employers to prevent sexual harassment.
Step 1: Review current procedures and policies
As a best practice, employers should ensure that policies are reviewed and updated annually. Employers should consider obtaining legal advice to ensure their policies meet all statutory obligations and guidelines. Relevantly, if the legislation is passed, employers can anticipate further guidelines from the AHRC which will assist employers to comply with the proposed new positive duty.
Step 2: Reflect on your workplace’s culture
Employers should reflect on their workplace’s culture and the behaviour of employees and senior leaders to assess how it could be viewed under the proposed provisions. Overt forms of sexual harassment are often easily identifiable, but more subtle sexual harassment, such as crude language or sexist remarks, often go unnoticed. Employers should assess whether there is any aspect of their current culture that could be subject to the requirements of the new provisions.
As the Bill proposes to prohibit hostile workplace environments on the grounds of sex, employers should be alert to how managers, supervisors and workers interact with each other and what is considered acceptable “workplace banter”. Other sources of data, such as exit interviews given by former staff and/or confidential workplace surveys, may also shed light on workplace behaviours that may require review by the employer.
Step 3: Appropriate workplace behaviour training, for all employees, senior managers and board members
Training and educating all workers is a key step to preventing 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 at least once a year.
Taking these steps will not only assist employers to ensure compliance with their existing duties under discrimination and work health and safety legislation, but also ensure employers are ready for the proposed changes, if they are passed.
If you have any questions about the proposed changes, please contact us below or send us your enquiry here.
Authors: Stephen Trew, Natasha Jones & Olivia Lawrence
The information in this article 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.