Reactive to proactive: new Sexual Harassment laws
Posted on October 27, 2022
The Federal Government has recently introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect@Work) Bill 2022 to parliament, which seeks to implement a further seven recommendations made by Sex Discrimination Commissioner Kate Jenkins’ Respect@Work Report in 2020.
This follows through on the promises made going into the May election that the new Government would enact the recommendations not enacted by the former Federal Government, to create safer, more respectful and more equitable workplaces. Details about the changes that were enacted last year by the former Federal Government can be found in our article R-E-S-P-E-C-T find out what it means at work.
Key changes
The proposed amendments include:
- a specific prohibition on hostile workplace environments;
- a positive duty to be imposed on employers to take reasonable and proportionate measures to eliminate unlawful discrimination, including sexual harassment, as far as possible;
- empowering the Australian Human Rights Commission (AHRC) to investigate systemic unlawful discrimination on its own initiative and enforce the positive duty;
- enabling a representative body to progress a complaint on behalf of one or more affected persons from conciliation at the commission to application to the Court;
- the introduction of “cost neutrality” cost protection provisions for complainants where each party will bear their own costs in sexual harassment proceedings; and
- requiring Commonwealth public sector organisations to report to the Workplace Gender Equality Agency;
The changes proposed highlight a shift in focus from dealing with individual complaints to a more preventative approach and are in line with WHS laws and state-based discrimination laws.
Of particular relevance to employers is the proposed “positive duty”. The positive duty will be conferred on all employers and requires them to take reasonable and proportionate measures to eliminate, as far as possible sexual harassment, harassment on the grounds of sex, hostile workplace environments or acts of victimization against persons relating to their complaints, proceedings, assertions or allegations of any of that conduct. Guidelines for compliance with the positive duty will be prepared and published by the AHRC to help educate and guide businesses. This duty will complement the existing WHS framework, which also requires employers to ensure, as far as reasonably practicable, the physical and psychological health and safety of workers. We covered WHS framework in our article Psychosocial risks at work – now a work health and safety issue.
In addition, the prohibition on hostile workplace environments prohibits conduct that results in an offensive, intimidating and humiliating environment for people of one sex. This provision seeks to provide clarity to employers and people in the workplace on their obligations to create safe and respectful workplace environments.
What this means for employers?
The proposed amendments shift responsibilities from those who experience discrimination and harassment to employers. Employers now have a positive duty to prevent it and must continuously assess and evaluate whether they are meeting the requirements of the duty.
It is likely that the amendments will be enacted into law and employers should be ready for the requirements of the amendments before they commence by taking steps now.
This may include:
- New policies and procedures to cover unlawful discrimination including sexual harassment that are directed at both preventing and responding to this conduct. Employers will need to have a comprehensive prevention plan to identify and eliminate inappropriate behaviours.
- Conducting meaningful and regular training for staff in addition to tailored training for leaders and managers.
- Updating WHS practices to include risks assessments to identify the likelihood of unlawful discrimination and sexual harrassment and measures to eliminate and/or control hazards/ risks.
Please contact our workplace relations team if you require assistance.
