The Anti-Discrimination and Human Rights Legislation Amendment (Respect At Work) Bill 2022 has recently passed Federal Parliament. This legislation seeks to implement a further 7 of the 55 recommendations of the Australian Human Rights Commission’s Respect@Work Report.
The main amendments include:
- A prohibition on conduct that subjects a person to a hostile work environment on the grounds of sex;
- A positive duty imposed on employers to take reasonable and proportionate measures to eliminate workplace sexual harassment;
- Providing the Australian Human Rights Commission (AHRC) new powers to monitor and assess compliance.
This article aims to outline the changes and what employers have to do to be compliant.
Prohibiting hostile work environments
The amendments include an expressed requirement to protect people from hostile workplace environments on the grounds of their sex. The conduct does not have to be directed at a singular person, instead it is conduct that results in an offensive, intimidating and humiliating environment for people of a particular sex.
In relation to what constitutes subjecting a person to a hostile work environment, the amendment includes a requirement that a reasonable person would have anticipated the possibility of the conduct being offensive, intimidating or humiliating to someone by reason of their sex or characteristics to do with their sex.
The circumstances to be considered when determining whether conduct is unlawful include:
- the seriousness of the conduct;
- whether the conduct was continuous or repetitive;
- the role, influence or authority of the person engaging in the conduct; and
- any other relevant circumstance.
This amendment will require businesses to eliminate any behaviours in the workplace which has the potential to result in a hostile work environment (e.g. a culture of frequent sexual comments).
Positive duty on employers
The amendments include a positive duty for employers to take reasonable and proportionate measures to eliminate unlawful discrimination, including sexual harassment, as far as possible. The duty will not just include conduct by employees, but conduct by third parties such as customers or clients.
This unlawful conduct includes sex discrimination, sexual and sex-based harassment, victimisation and the new ‘hostile workplace environment’ conduct outlined above.
When determining whether the employer is complying with the positive duty, the reasonable and proportionate measures required will depend on:
- the size, nature and circumstances of the business or undertaking;
- the duty holder’s resources, whether financial or otherwise; and
- the practicability and costs associated with the steps.
Some examples of what may be required could include:
- Introducing relevant policies and procedures
- Providing appropriate support to employees
- Clear methods for employees to voice complaints
- Mandating training courses regarding sexual harassment and discrimination.
New powers of the AHRC
The amendments will allow the AHRC to assess compliance with the new positive duty. The AHRC will also be able to initiate action to address unlawful discrimination where it ‘reasonably suspects’ non-compliance, rather than only relying on individual complaints.
The AHRC will be able to:
- Prepare and publish guidelines for complying with the positive duty and promote understanding and public discussion of the positive duty.
- Direct inquiries into a person’s compliance with the positive duty and offer recommendations to achieve compliance.
- Give a compliance notice specifying the action that a person must take, or refrain from taking, in order to address their non-compliance.
To give businesses time to understand their new obligations, these functions of the AHRC will commence 12 months after Royal Assent.
Beyond the AHRC, the amendments aim to increase the ease of commencing a court proceeding relating to discrimination, allowing representative bodies (e.g. unions) to now initiate representative complaints (a claim made on behalf of multiple people) in the Federal Court, even if the matter has been terminated by the AHRC. Previously if a representative body put a claim on behalf of a group but the claim wasn’t resolved by the AHRC, a representative body couldn’t then initiate action in the federal courts on behalf of the group.
They also introduced a ‘cost neutrality’ principle which states individual parties will bear their own costs in an unlawful discrimination proceeding, (courts retain a discretion to depart from this if they believe it is appropriate). This is all designed to increase the access to the courts to encourage further proceedings regarding sexual harassment and discrimination.
With these new changes, businesses need to be more vigilant in combating sexual harassment and discrimination in the workplace.
Clients of ER Strategies can contact the team on 1300 55 66 37 during business hours to discuss their specific situation, or log in to Online HR to download a copy of our Sexual Harassment Prevention Policy and our Anti-Discrimination Policy.
Clients can also speak to us today about gaining access to our new learning modules for your employees – Workplace Bullying and Sexual Harassment, and Workplace Discrimination.