On 25 November 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Act) was passed by Parliament.

This article highlights the legislative changes that employers must closely examine, understand and implement in their workplaces.

Positive duty to eliminate unlawful sexual discrimination

The Act amends the Sex Discrimination Act 1984 (Cth) (SD Act) to place a positive duty on employers or a person conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct in their workplaces,[1] including:

  • discrimination on the ground of a person’s sex;
  • harassment (including sexual harassment) on the ground of sex;
  • hostile workplace environments; and
  • acts of victimisation that relate to complaints, proceedings, assertions or allegations of the above matters.

What are considered to be ‘reasonable and proportionate measures’ will vary between employers. To assist in determining whether an employer complies with their positive duty, the Act provides that the following factors will be taken into account:

  • the size, nature and circumstances of the employer’s business or undertaking;
  • the employer’s resources, whether financial or otherwise;
  • the practicability and cost of measures to eliminate the abovementioned conduct; and
  • any other relevant matters.[2]

Broadly speaking, compliance with this positive duty may involve implementing and/or updating policies and procedures, collecting and monitoring data, providing appropriate support to workers and employees, and delivering relevant training and education on a regular basis.[3]

Enforcing the positive duty

The Act also inserts new provisions into the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) that will enable the Australian Human Rights Commission (Commission) to inquire, monitor and assess employer compliance with the positive duty where it ‘reasonably suspects’ that an employer is not complying with their duty.[4] Importantly, the Commission may initiate such an inquiry without an individual making a complaint about non-compliance.

If the Commission finds that an employer is not complying with their positive duty to eliminate unlawful sexual discrimination, the Commission may issue a ‘Compliance Notice’ which outlines the steps to be taken by the employer to remedy its non-compliance.[5]

These amendments to the AHRC Act will not come into force until 12 months after the Act is assented to, meaning employers will have some time to consider and implement its reasonable and proportionate measures before the positive duty will be able to be enforced.

Hostile workplace environments

The Act also amends the SD Act to introduce an express prohibition on subjecting a person to a workplace environment that is hostile on the ground of sex.[6] This provision is intended to provide clarity to employers, employees and other people within a workplace of their obligation to create safe and respectful workplace environments.

Section 28M of the SD Act states that a person subjects another person to a workplace that is hostile on the ground of sex if a reasonable person, having regard to all of the circumstances, would have anticipated that the conduct towards another could result in the workplace environment being offensive, intimidating or humiliating to that person by reason of:

(a) the sex of the person;

(b) a characteristic that appertains generally to persons of that sex; or

(c) a characteristic that is generally imputed to persons of that sex.

The circumstances to be taken into account when determining whether a person has subjected another to a hostile workplace environment on the ground of sex includes, but is not limited to, the following:

(a) the seriousness of the conduct;

(b) whether the conduct was continuous or repetitive; and

(c) the role, influence or authority of the person engaging in the conduct.

It is important to note that the duty to eliminate a hostile workplace environment requires employers to prevent the perpetration of such conduct by external influences, such as suppliers, contractors or members of the general public.

Victimisation

The Act confirms that it is unlawful for a person to commit an act of victimisation against another person. Further, an act of victimising conduct can form the basis of a civil action for unlawful discrimination under the:

  • Anti-Discrimination Act 1991(Cth);
  • Age Discrimination Act 2004 (Cth);
  • Disability Discrimination Act 1992 (Cth); and/or
  • Racial Discrimination Act 1975 (Cth).

These new provisions provide, in summary, that a person commits an act of victimisation against another person if they engage in intentional conduct which causes detriment to the other person because that person made a complaint to, commenced proceedings in, attended a conference in, or gives information or documents to, the Commission.

Systemic discrimination

In addition to conferring powers to the Commission to enforce the positive duty to prevent certain discriminatory and harassing conduct, the Act expands the Commission’s powers so that it can inquire into systemic unlawful discrimination or suspected systemic unlawful discrimination.

The Act defines ‘systemic unlawful discrimination’ to mean unlawful discrimination that ‘affects a class or group of persons’ and ‘is continuous, repetitive or forms a pattern.’[7] This definition enables the Commission to inquire into instances of unlawful discrimination within individual businesses, as well as instances of unlawful discrimination across multiple businesses within a broader industry or sector.[8]

These broadened powers enable the Commission to perform its systemic inquiry functions when requested to do so by the Minister, or alternatively when the Commission considers it to be appropriate to do so.

Representative applications

The Act further amends the AHRC Act to permit representative bodies, such as unions, to initiate proceedings on behalf of a person who has allegedly experienced unlawful discrimination or sexual harassment in the federal court system, provided that a complaint was made to the AHRC first and that complaint has been terminated.[9]

Cost protection

The Act also inserts cost protections into the AHRC Act.[10] Section 46PSA of the AHRC Act now provides that each party is to bear their own costs unless the court considers that there are circumstances to justify a deviation from this position.

This provision was inserted to address the [email protected] Report finding that those who experience sexual harassment were deterred from initiating court proceedings due to the standard principle that costs follow the event, which could see a vulnerable applicant being responsible for their own costs and the costs of the responding party if their application was unsuccessful.

In considering whether to depart from the position that each party bears their own costs, the court will be required to consider a range of factors including:

  • the financial circumstances of each of the parties to the proceedings;
  • the conduct of the parties to the proceedings (including any conduct of the parties in dealings with the Commission);
  • whether any party to the proceedings has been wholly unsuccessful in the proceedings;
  • whether any party to the proceedings has made an offer in writing to settle and the terms of that offer; and

Timeframe for making a complaint

The Act also amends the discretionary grounds on which a complaint may be terminated by the President of the Commission such that, instead of the current six month timeframe, a complaint under the Anti-Discrimination Act 1991 (Cth), Disability Discrimination Act 1992 (Cth) or Racial Discrimination Act 1975 (Cth) could be terminated if it is made more than 24 months after the alleged unlawful conduct took place.[12]

This timeframe has been implemented to reduce the procedural barriers arising from complainants being delayed in making a complaint and to reassure complainants that their complaints would not be dismissed within 24 months of the conduct.[13]

Conclusion

All employers must be aware of their new obligations to eliminate sexual harassment and other discriminatory conduct occurring within their workplaces.