Australia’s Respect@Work Act and the Positive Duty on Employers
In December 2022, Australia passed a significant piece of legislation with potentially far-reaching consequences for employers across the country: the Anti-Discrimination and Human Rights Legislation Amendment (Respect@Work) Act 2022, colloquially referred to as the Respect@Work Act.
This legislation introduces a new concept of “positive duty” on employers and persons conducting a business or undertaking (PCBUs), requiring them to actively eliminate workplace sexual harassment, sex discrimination, and victimisation.
Before examining the implications of this Act, it is essential to understand what positive duty means. In the context of the legislation, positive duty refers to a legal obligation on employers and PCBUs to take proactive and continuous action to prevent sexual harassment, sex discrimination, sex-based harassment, and victimisation from occurring within their workplaces . Rather than merely reacting to instances of misconduct after they occur, employers are now obligated to actively prevent such occurrences.
The introduction of this positive duty marks a significant shift in the Australian legal landscape. It was a key recommendation of the Respect@Work Report published by the Australian Human Rights Commission in March 2020, which sought to tackle sexual harassment at its roots . The intent is to move away from the previous complaints-based model and place the onus on employers to ensure a safe and respectful work environment.
As for the expected outcomes, the Respect@Work Act aims to effect a significant cultural change within Australian workplaces. It hopes to foster a climate of respect, safety, and inclusivity, enabling employees to work without fear of sexual harassment or discrimination. Importantly, it seeks to shift the burden from individuals making complaints to employers taking proactive and preventative action.
In terms of compliance, employers and PCBUs are expected to take “reasonable and proportionate measures” to eliminate discriminatory conduct . This could include implementing policies and procedures to combat harassment and discrimination, providing staff training, and creating an open channel for employees to report any instances of misconduct safely and confidentially. Failure to comply could result in investigations by the Australian Human Rights Commission, which has been granted new regulatory powers under the Respect@Work Act. The penalties for non-compliance are set to be severe, underscoring the Australian government’s commitment to addressing these critical issues.
This is an incredibly complex area to manage. The Australian Human Rights Commission is developing educational materials and guidance resources. These materials, to be made available on the Respect@Work website and the Commission’s website, will offer practical advice and tools for preventing and responding to sexual harassment and discrimination effectively . But they’re not available yet, and the clock is ticking.
For this reason, I believe it will be crucial for businesses to work with legal experts and consultants to prepare for the impact of the positive duty obligation.
One significant measure employers can adopt to be compliant with this new positive duty is the implementation of a robust workplace prevention and response model. The Respect@Work Report proposes a model centered around seven inter-related domains: leadership, risk assessment and transparency, culture, knowledge, support, reporting, and measuring. By developing and implementing strategies in these areas, employers can take a comprehensive approach to eliminating workplace sexual harassment, sex discrimination, and victimisation.
We are already working with clients to develop tailored prevention and response plans for their organisations. If you need support to develop yours, we can always help. Reach out to us at email@example.com to organise a confidential chat.
I believe the Respect@Work Act represents a ground-breaking effort to eradicate sexual harassment, sex based-harassment (sexism) and discrimination in Australian workplaces, and as a woman who has dealt with such issues throughout my career, I welcome it. I must also say sexual harassment does not discriminate, I know of many cases where men have been targeted.
By placing positive duty on employers, the Act shifts the burden from the victims to those in positions of power, prompting a proactive and continuous approach to create safe, inclusive, and respectful workplaces. The Act’s enforcement signifies a renewed commitment to ensuring all workers’ rights to a harassment-free environment, creating a significant milestone in the journey towards workplace equality.