Respect@Work Bill passes Parliament

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022passed Parliament on the afternoon of 28 November 2022, in a further step to implement the recommendations from Sex Discrimination Commissioner Kate Jenkins’ Respect@Work report, published in March 2020.

Amendments have been made to the Sex Discrimination Act 1984, Australian Human Rights Commission Act 1986, and the Workplace Gender Equality Act 2012.

Summary of Amendments

Significantly, the amendments introduce a positive duty on employers to take reasonable and proportionate measures to prevent sexual harassment, sex discrimination and victimisation. The positive duty is intended to prevent rather than react to harassment and discrimination in the workplace. The duty will operate concurrently with existing duties falling upon businesses and undertakings (or PCBU’s) under Work Health and Safety legislation.

Other notable amendments are as follows:

• The Sex Discrimination Act is amended to introduce an express prohibition against conduct which creates a hostile workplace on the ground of sex. A hostile workplace is defined as an environment where ‘a reasonable person having regard to all the circumstances would have anticipated the possibility of the conduct resulting in an environment that is offensive, intimidating, and humiliating to a person of the sex of the relevant individual’. Actions which may contribute to a hostile workplace include displaying offensive materials, engaging in sexist banter, making offensive jokes, or engaging in other conduct that that can result in people of a particular gender feeling unwelcome or excluded;
• The Australian Human Rights Commission (AHRC) will be given certain enforcement powers and powers to make inquiries into compliance with the positive duty and any systemic, unlawful discrimination. This is discrimination that is ‘unlawful discrimination that affects a group of people and is continuous repetitive or forms a pattern’;
• Representative actions (being actions which can be brought on behalf of a group of persons, by a representative body, which may be a Union) for all forms of unlawful discrimination brought before the AHRC can now proceed to the Federal Court. Previously representative actions were limited to AHRC complaints only;
• The Workplace Gender Equality Act is amended to require the Federal Public Sector to report annually against six gender equality indicators. Currently this is only a requirement for private corporations with more than 100 employees.
• The objects of the Sex Discrimination Act will be amended to state that it seeks to achieve substantive equality between men and women.

One proposed amendment which was not passed was the contentious costs neutrality provision, which would have resulted in parties ordinarily bearing their own costs in proceedings in the Federal Court. The costs provisions have been referred back to the Attorney-General’s Department for further review.

How does this impact employers?

These amendments reinforce the need for employers to take positive proactive steps to ‘stamp out’ sexual harassment and sex discrimination in the workplace.  The risks to businesses of prosecution for breach of these provisions includes the possibility of orders to pay an uncapped amount of damages, and increases the risk of employers being found vicariously liable for the actions of their employees.

There is a 12 month transition period before the positive obligation is enforced. Employers are encouraged to review their sexual harassment policies now to adequately prepare for the incoming changes, and to proactively think about measures that will be introduced to meet the positive duty that is required to be met going forward.

EMA Legal can assist employers with reviewing their workplace harassment policies, and answer any queries regarding the new legislation.