Respect@Work Update for Employers
How will the proposed Respect@Work changes to sexual discrimination and harassment laws affect employers?
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Bill) was tabled by the Albanese Government on 20 September 2022 (and was today followed by a bill to reform the Fair Work Act 2209 (Cth) which we will communicate with clients about separately). The Bill proposed a number of significant changes to the existing sexual harassment and discrimination framework and is expected to have bilateral support in parliament.
The Bill follows reports that 33% of Australian workers have experienced workplace sexual harassment in the preceding 5 years and results in an estimated $3.8 billion a year being wasted on lost productivity, staff turnover and absenteeism as a result of this and discrimination.
The Bill seeks to introduce 9 of the 55 recommendations given in Sex Discrimination Commissioner Kate Jenkins’ 2020 Respect@Work report.
What are the proposed changes?
1. Impose on employers a positive duty to take ‘reasonable and proportionate measures’ to eliminate unlawful sexual discrimination
Employers and Persons Conducting a Business or Undertaking (PCBU)’s will be required to eliminate as far as possible sex discrimination, sexual and sex-based harassment, hostile work environments and victimisation through proactive prevention. These proactive measures apply to the conduct of the organisation, employees, workers and agents, as well as third parties such as clients and customers. Proactive measures may include implementing policies and procedures, collecting and monitoring data, providing appropriate support to workers and employees, and delivering training and education on a regular basis.
Whether or not measures taken will be considered to be reasonable and proportionate will vary depending on the individual circumstances of the employer or PCBU. The circumstances that will be taken into account are the size, nature and circumstances of the business or undertaking and the duty holder’s resources, whether financial or otherwise, as well as the practicability and costs associated with the steps.
2. Give Australian Human Rights Commission power to investigate employers
The Bill proposes to enable the Australian Human Rights Commission (AHRC) to conduct enquiries (or investigations) if it reasonably suspects an employer or PCBU is not meeting the positive duty to prevent sexual harassment/sex discrimination. This can be done on the AHRCs own motion or at the request of the Minister. The AHRC will have the power to provide recommendations to achieve compliance, issue compliance notices, apply to the Federal Court for orders to direct compliance with the compliance notice, and enter into enforceable undertakings. Effectively giving the AHRC powers that are similar to those often held by work health and safety regulators.
The AHRC’s powers will come into effect 12 months after the Bill is passed.
3. AHRC given enhanced power to inquire into systemic unlawful discrimination
‘Systemic unlawful discrimination’ is defined to mean unlawful discrimination that affects a class or group of persons and is continuous, repetitive or forms a pattern. The proposed changes will give the AHRC the power to make inquiries into actual or suspected systematic unlawful discrimination. The AHRC can conduct inquiries when requested by the Minister, or where it appears to the AHRC to be desirable to do so. Inquiries will be able to be extended across multiple businesses within an industry or sector and is not limited to single workplaces or employers.
Once an inquiry has been made the AHRC can report to the Minister, publish a report, and/or make recommendations.
4. Express prohibition against hostile working environments
The Bill proposes to expressly prohibit conduct that subjects another person to a workplace that is hostile on the grounds of sex. The grounds of sex may include the sex of the person, a characteristic that appertains generally to a person of the sex of the person, or a characteristic that is generally imputed to persons of the sex of the person.
The concept of hostile working environments has already been recognised by courts when interpreting the SD Act, however this provision aims to expressly clarify the boundaries between acceptable and unacceptable conduct.
This provision will prohibit conduct that a reasonable person would have anticipated being offensive, intimidation or humiliating to a person on the basis of their sex. Examples include displaying pornographic materials, sexual banter or inuendo and offensive jokes. Whether or not the conduct will be considered unlawful will depend on the seriousness of the conduct, whether it is continuous or repetitive, the influence or authority of the person doing it and any other relevant circumstances.
5. A lowered threshold for sex-based harassment
The proposed changes would remove the word ‘seriously’ from the definition of sex-based harassment. A person’s conduct will not need to be ‘seriously demeaning’ in order to amount to ‘harassment on the grounds of sex’. This is a significantly lower bar to meet.
6. Cost protections in unlawful discrimination proceedings
To reduce the risk of adverse costs orders preventing complaints from being made, it is proposed that each party to proceedings will bear the burden of their own costs. However, the court will retain the discretion to make an order for costs where it is just to do so considering the financial circumstances of the parties, the conduct of the parties, whether either party has been unsuccessful, any offer made, if it is an issue of public importance, or anything else relevant.
7. Public sector reporting to Workplace Gender Equality Agency
Commonwealth public sector agencies will be required to report annually on gender equality indicators to the Workplace Gender Equality Agency (WGEA), to align with private sector reporting requirements.
8. Representative bodies able to make applications to the Federal Court
Representative bodies, such as unions, will be able to make applications to the Federal Court if an application to the AHRC is not resolved and terminated.
9. Victimisation can lead to both criminal and civil claims
The proposed changes clarify that victimising conduct can lead to both civil action for unlawful discrimination, and criminal action under various anti-discrimination acts.
What can employers do to prepare for these changes?
Where this Bill is passed, it will remove a number of barriers that have prevented or discouraged employees from making complaints. It is important for employers and PCBUs to audit their systems of work and workplace culture in order address potential issues before the laws change. A simple change of policy alone will not be enough to meet this positive duty, and positive steps will need to be taken to ensure that the workplace culture remains respectful and prevents future risk of non-compliance.
These steps could include:
- Updating existing policies against discrimination and sexual harassment, including complaints procedures;
- Ensuring regular refresher training in discrimination and sexual harassment (at least every 1 to 2 years);
- Implementing measures to actively assess compliance with sex discrimination and sexual harassment – for larger employers, this might be done by ways including via management enquiries, WHS committees, staff surveys, amongst other things;
- Commencing to treat the management of the risk of discrimination and sexual harassment in the same way as safety risks – where risk assessments are undertaken and control measures are put in place, such as during high risk events or periods;
- Appropriate behaviour modelling by senior employees; and
- consistently enforcing disciplinary procedures and processes,
amongst other things. Ultimately what any employer is required to do will differ depending on the nature and size of their workforce, and the nature, regularity and seriousness of the risk of discrimination and sexual harassment within their particular business.