On 28 November 2022, our Federal Parliament passed the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Bill), bringing important legal changes including a positive duty to eliminate sexual harassment and discrimination on the ground of sex.
The Bill came about because of the Sex Discrimination Commissioner’s, Kate Jenkins’ 2020 report, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces.
Why are these legal changes important for workplaces?
Sexual harassment is pervasive in Australian workplaces and over the past few years, there has been significant momentum in the push for safer workplaces and communities, free from sexual harassment and gendered violence.
Reports by the Australian Bureau of Statistics suggest that 53% of women and 25% of men have experienced sexual harassment in their lifetime. This is reflected across Australian workplaces.
According to the Australian Human Rights Commission – Everyone’s business: Fourth National Survey on Sexual Harassment in Australian Workplaces (2018), one in three Australian workers has experienced sexual harassment in the past 5 years. Despite this, only 17% of people who reported being sexually harassed at work actually made a complaint about this.
What are the key legal changes for employers?
Prohibiting hostile work environments on the ground of sex
The Bill brings important amendments to the Sex Discrimination Act 1984 (Cth) (SD Act), including a new provision in the SD Act which prohibits conduct that subjects another person to a workplace environment that is hostile on the ground of sex.
Including a positive duty to prevent sexual harassment
The SD Act will include a provision that persons conducting a business or undertaking (PCBU) (e.g., employers) have positive obligations under the SD Act, to take reasonable and proportionate measures, to eliminate, so far as possible (a positive duty):
- discrimination on the ground of sex;
- unlawful sexual harassment;
- unlawful harassment on the ground of sex;
- workplace environments that are hostile on the ground of sex; and
- acts of victimisation (including in instances where persons make complaints, assertions, or allegations, or participate in proceedings in respect of discrimination on the ground of sex, unlawful sexual harassment or harassment on the ground of sex, or workplace environments that are hostile on the ground of sex).
The positive duty extends to actions engaged in by an employer / PCBU, or by their employees, workers, and agents, towards each other, and towards third parties, such as customers.
Compliance and enforcement
The Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) will contain new provisions empowering the Australian Human Rights Commission (AHRC) to inquire into an employer’s compliance with the positive duty such that the AHRC can initiate action to address unlawful discrimination, instead of only relying on applicants to bring a claim.
The AHRC will also be empowered to apply to Federal Courts for orders to enforce compliance or enter enforceable undertakings with employers.
Costs protections of persons bringing claims
Via amendments to the AHRC Act, applicants will have cost protections (i.e., such that each party to a claim will generally bear their own costs).
The Revised Explanatory Memorandum to the Bill explains that in the past, the risk of a costs order being made against an applicant considering a sexual harassment claim in Federal Courts was a disincentive in bringing a claim. As such, the “cost neutrality approach” as the default position provides applicants with greater costs certainty.
What should employers be doing now?
In readying themselves for these changes, employers should be considering an identification and assessment of their sexual harassment risks, and preparing to comply with their positive duties.
This may include:
- reviewing incident reports, EAP data, exit interviews and codes of practice;
- conducting risk assessments using information from focus groups, surveys, and workplace consultation,
- ranking and implementing controls to deal with sexual harassment from most effective to least effective (e.g., policies, procedures and training); and
- ensuring sexual harassment is considered as a key priority at all safety meetings.