On 27 September 2022, the Federal Government introduced to parliament the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. If passed, it will implement a further 7 of the 55 recommendations from the Respect@Work report.
If passed it, these changes will introduce a “positive duty” on employers under the Sex Discrimination Act 1984 (Cth), who will be required to take reasonable and proportionate measures to eliminate workplace sexual harassment, victimisation and sex discrimination as far as possible, and give the AHRC power to enforce this.
The new legislation, which seeks to give effect to seven outstanding recommendations from the Repsect@Work Report, includes:
• a positive duty on employers to take action to prevent workplace sexual harassment and sex discrimination, not just respond to it when it occurs
• offences for having a hostile workplace
• powers for the Human Rights Commission to investigate and issue compliance notices on business.
In anticipation of these changes, employers should be moving away from a reactive model of dealing with harassment issues towards a far more preventative approach to all forms of discrimination, harassment and victimisation in the workplace.
Summary of key changes
Schedule 1: Hostile Work Environment
Schedule 1 of the bill introduces an express prohibition in the Sex Discrimination Act to protect people from hostile workplace environments on the ground of sex.
This schedule does not require that an individual person has been the victim of sexual harassment or discrimintation. It’s focus is on the overall work environment. This schedule prohibits conduct that results in an offensive, intimidating and humiliating environment for people because of their gender.
As noted in the Respect@Work report, sexually charged or hostile workplace environments can increase the risk of a person experiencing other forms of unlawful discrimination, including sexual harassment. This new provision will provide clarity to employers, employees and other people in the workplace on their obligations to create safe and respectful workplace environments. This will implement recommendation 16(c) of the Respect@Work report.
Schedule 2: Positive Duty
Schedule 2 to the bill creates positive duty on employers to take reasonable and proportionate measures to eliminate unlawful discrimination, including sexual harassment, as far as possible. This will implement recommendation 17 of the Respect@Work report.
The Australian Human Rights Commission will also be equipped with appropriate compliance powers to enforce the positive duty. The commission will prepare and publish guidelines for compliance with the positive duty and will educate businesses and employers to better understand and comply with their obligations. This will implement recommendation 18 of the Respect@Work report.
This cornerstone of the Respect@Work report recommendations is a key step to focusing actions on the prevention of sexual harassment and discrimination, looking beyond remedies for misconduct. The focus on prevention of workplace sexual harassment and discrimination also shifts responsibility from those who experience discrimination and harassment to those who are best placed to prevent it: employers. The positive duty will complement the existing work health and safety framework, which also requires employers to ensure, as far as reasonably practicable, the physical and psychological health and safety of workers.
The bill will enable the commission to monitor and assess compliance, working with businesses along the way to support their compliance. The commission’s functions will include:
• conducting inquiries into a person’s compliance and making recommendations to achieve compliance;
• giving a compliance notice specifying the action that must be taken to address noncompliance;
• applying to the courts for an order to direct compliance with a notice; and
• the ability to enter into enforceable undertakings.
Schedule 3: Systemic Unlawful Discrimination
Schedule 3 to the bill will provide the Australian Human Rights Commission with a function to inquire into systemic unlawful discrimination. This will implement recommendation 19 of the Respect@Work report.
The Respect@Work report found that there are significant cultural and systemic factors that drive sexual harassment in the workplace and that addressing these drivers can be challenging.
This function will enable the commission to inquire into any matter that may relate to systemic unlawful discrimination or suspected unlawful discrimination.
Suspected unlawful discrimination is unlawful discrimination that affects a group of people and is continuous, repetitive or forms a pattern. The commission can undertake an inquiry where requested by the minister or when the commission considers it would be desirable. At the conclusion of an inquiry, the commission may publish a report and provide it to the minister, which may include recommendations.
Schedule 4: Representative Actions
Schedule 4 to the bill will enable representative actions to proceed from conciliation at the commission to make an application to the courts and will implement recommendation 23 of the Respect@Work report.
Currently a representative body is able to make a representative complaint to the commission on behalf of one or more persons; however, where a complaint is not resolved, the representative body is not able to initiate court proceedings.
This bill will enable a representative body to progress a complaint on behalf of one or more affected persons from conciliation at the commission to application to the court. This will improve support for people who experience harassment and discrimination to navigate the legal system and resolve their complaints. It will also better enable issues of systemic discrimination affecting a broad range of people to be addressed.
Schedule 5: Costs Protections
Schedule 5 to the bill will insert a costs protection provision into the Australian Human Rights Commission Act to provide greater certainty in relation to the cost of pursuing legal action. This will implement recommendation 25 of the Respect@Work report.
The Respect@Work report heard that concerns about adverse cost orders deter applicants from seeking to resolve complaints through the courts. Cost reforms will give both applicants and respondents greater certainty in terms of the costs they may face while not impacting their access to legal representation.
The cost reform in this bill is the model supported by the Australian Human Rights Commission in their 2021 Free and Equal Position Paper, and these reforms will apply to all applications under Commonwealth anti-discrimination law. The approach balances the need for certainty and the clear impact costs can have on applicants taking action in the courts against the unintended consequences of costs reform, such as impacting access to legal representation.
Schedule 6: Public Sector Reporting to the Workplace Gender Equality Agency
Schedule 6 to the bill will amend the Workplace Gender Equality Act to require the Commonwealth public sector to report against six gender equality indicators to the Workplace Gender Equality Agency. The Respect@Work report found that improved data collection is important to ensure that there is robust understanding of gender inequality in Australian workplaces. This will implement recommendation 43 of the Respect@Work report for the Commonwealth public sector.
Schedule 7: Victimisation
Schedule 7 to the bill will clarify that victimisation can be the basis for a civil action of unlawful discrimination against Commonwealth anti-discrimination law, being the Age Discrimination Act, the Disability Discrimination Agent and the Racial Discrimination Act.
The Respect at Work Act 2021 included an amendment to clarify that victimisation can be the basis of a civil—and not just a criminal—action of unlawful discrimination under the Sex Discrimination Act.
It had always been the intention that the provisions in relation to victimisation in the Sex Discrimination Act—and the equivalent provisions in other Commonwealth anti-discrimination acts—could form the basis of either a civil or criminal cause of action, but the clarifying amendment in the Respect at Work Act 2021 was made necessary by a number of court decisions which gave rise to uncertainty around whether the relevant provisions achieved their intent.
The amendments in schedule 7 would address the same potential issue in other Commonwealth anti-discrimination acts by ensuring that the victimisation provisions in those acts reflect what has always been the intention—which is that acts of victimisation can form the basis of both civil and criminal causes of action.
Schedule 8: Objects Clause and Termination Timeframe Alignment
Schedule 8 to the bill will amend the objects clause of the Sex Discrimination Act to state that an object of the act is to achieve substantive equality between men and women. This will implement recommendation 16(a) of the Respect@Work report.
The bill will also insert a new objects clause to support the operation of the new hostile work environment protection. The addition to the objects clause will state that an object of the act is to eliminate, so far as is possible, discrimination involving workplace environments that are hostile on the ground of sex.
This schedule will also change the timeframe for when a complaint under anti-discrimination law may be terminated by the President of the Australian Human Rights Commission from six months to 24 months.
The Respect at Work Act 2021 amended the time frame for complaints made under the Sex Discrimination Act, but not for any other antidiscrimination law. This has led to procedural challenges and complexity for people who are entitled to make a claim under more than one Commonwealth antidiscrimination act.
The president retains a discretion to consider complaints beyond the statutory timeframe, but this change will give greater certainty to complainants that intersectional aspects of an antidiscrimination complaint can be considered without procedural obstacles.
It is expected that the Bill will pass both houses of Parliament later this year. Employers should begin to prepare for this now by:
• undertaking a risk assessment of sexual misconduct in their workplace and the “reasonable and appropriate” measures available to mitigate against these risks;
• updating their work health and safety registers to include these sexual misconduct risks;
• providing regular training to employees on the topic of sexual misconduct; and
• implementing and/or revising their workplace harassment, discrimination and bullying policies as well as their grievance policies.
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