By Amanda Curatore
Did you know that the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (the Act) means all employers now have a direct obligation to eliminate sexual harassment in the workplace? This amendment has put in place a firm set of standards that businesses cannot ignore, and as an employer, you must begin:
- Updating your Contracts of Employment and Policies;
- Creating a reporting culture to identify potential issues at an early stage; and
- Implement regular training and development for all workers.
Let’s go over the legislative changes, and their impact on your business – and introduce you to a brand-new e-Learning platform to make it easy for your business to stay compliant.
Respect@Work: what was recommended, why it’s now law, and what to do next
1. What is a hostile workplace environment?
The Sex Discrimination Act 1984 (Cth) (‘Sex Discrimination Act’) has been amended to prohibit conduct that subjects another person to a workplace environment that is hostile on the grounds of sex. This prohibition extends to any conduct that occurs in the workplace, including by clients and contractors.
Sexual harassment may occur where a . The protection will not require the conduct to be directed at a specific person but instead prohibits conduct that results in an offensive, intimidating, and humiliating environment for people of one sex. The test here is whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct being offensive, intimidating or humiliating to a person of a particular sex or because of characteristics to do with a particular sex.
What you need to do: keep an eye out for features including general sexual banter, innuendo or offensive jokes, the display of obscene or pornographic materials, or even petty nuisance phone calls that may be creating a hostile workplace environment for either sex, even when not necessarily sexual in nature.
The Act’s introduction of an express prohibition to protect people from hostile workplace environments will mean that businesses will now be required to stamp out any behaviours in the workplace which have the potential to result in an offensive, intimidating and humiliating environment for people of one sex.
2. Employers now have a ‘positive duty to eliminate sex discrimination.’ This is what is required:
As a result of the implementation of the Act, employers and persons conducting a business or undertaking (PCBU) now have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, unlawful sex discrimination, and victimisation in the workplace. This applies where the conduct is engaged in by the duty holder themselves, their employees, workers, agents, and even third parties in certain cases.
This measure sees a shift in focus from a complaints-based model to a proactive approach to preventing sexual harassment, discrimination and victimisation in the workplace.
The content of this duty and the meaning of ‘reasonable and proportionate measures’ are adaptable, and will vary depending on the size, nature and circumstance of your business, financial and non-financial resources, and the practicability and costs associated with any steps.
Some possible examples include:
- Implementing policies and procedures (though this alone will not be enough).
- Collecting and monitoring data (large to medium-sized businesses should conduct staff surveys).
- Providing appropriate support to workers and employees.
- Delivering training and education around unlawful conduct regularly.
Now that these laws have come into play, it’s a good idea that businesses assess the risk in the workplace, put a prevention plan in place and communicate any changes.
Taking all reasonable and appropriate measures to prevent unlawful conduct will operate to exclude employers from vicarious liability for unlawful acts done by their employees or agents under s106 of the Sex Discrimination Act, as well as model WHS laws.
3. How will claims of failure to meet these obligations be enforced?
The Australian Human Rights Commission (‘AHRC’) has the power to monitor and assess compliance with the positive duty. From 12 December 2023, the AHRC will be able to initiate action to address unlawful discrimination, rather than relying on individuals making complaints, where it ‘reasonably suspects’ non-compliance. This can be based on information or advice provided by other agencies or regulators, impacted individuals or even media reporting. The AHRC will be able to:
- Prepare and publish other guidelines for complying with the positive duty and promote understanding and public discussion of the positive duty.
- Conduct inquiries into a person’s compliance with the positive duty and provide recommendations to achieve compliance.
- Give a compliance notice specifying the action that a person must take, or refrain from taking, to address their non-compliance.
- Apply to the Federal Courts for an order to direct compliance with the compliance notice.
Businesses can seek reconsideration of a compliance notice or apply to the Federal Courts for a review.
Court proceedings
Representative bodies such as unions can initiate representative complaints (a complaint made on behalf of a group of people who have experienced unlawful discrimination) in the AHRC. However, representative bodies traditionally were unable to make an application to the Federal Court if the matter has been terminated by the AHRC. However, now, a representative body can make an application to the Federal Courts in circumstances where the complaint has been terminated by the AHRC.
The Act has also introduced a ‘cost neutrality’ approach that provides the default position on costs in the Federal Courts. Each party will bear their own costs in an unlawful discrimination proceeding, while courts retain discretion to depart from this when considered just. The risk of paying the other party’s costs ordinarily acts as a disincentive to applicants considering sexual harassment proceedings. This is intended to encourage more willingness and a higher occurrence of claims brought in Federal Courts, though this will remain to be seen.
Don’t fall behind in your obligations – this digital learning platform will start ensuring you are compliant
We know that keeping up with and understanding these legislation changes is a big job for businesses large or small, and that’s where HR Assured’s extensive expertise and experience come in. After a lot of behind-the-scenes work, we’ve officially launched our brand-new e-Learning course, Introduction to Appropriate Workplace Behaviour, that lives within our software HRA Cloud.
This online training course is suitable for employees at all levels and consists of seven individual modules that have been designed to ensure your business is keeping up with the new requirements of eliminating sexual harassment at work. In addition to providing practical solutions on how your business can stamp out sexual harassment, the course also educates participants on what sexual harassment in the workplace is and explains the Respect@Work laws in easy-to-understand language.
Once an employee has completed the course, a record is retained in HRA Cloud to ensure your record-keeping obligations are met.
While this e-Learning has been prepared to address the Respect@Work legislation requirements, our experts are hard at work developing a comprehensive and robust platform filled with additional content, courses, and resources to support your business and your people.
If this information has raised any further questions, or you have another matter you need advice on, please reach out to our experts via our 24/7 Telephone Advisory Service.
Not an HR Assured client? If you’d like more information about the benefits of becoming an HR Assured client, contact us today for an informal chat.
Amanda Curatore is a qualified Solicitor at FCB and HR Assured. Amanda is highly experienced in providing workplace relations advice and assistance to clients in a wide range of matters including employment contracts, modern award interpretation, managing performance, bullying and harassment, terminations, and managing risk.