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Respect@Work - What employers need to action now

On 25 November 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect@Work Bill) was passed by the Federal Parliament.The Respect@Work Bill will implement the outstanding seven recommendations made by the Australian Human Rights Commission in its ‘Respect@Work: Sexual Harassment National Inquiry Report (2020)’.

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

The Respect@Work Bill will implement the outstanding seven recommendations made by the Australian Human Rights Commission (AHRC) in its ‘Respect@Work: Sexual Harassment National Inquiry Report (2020)’.

Who does the Respect@Work Bill apply to?

The Respect@Work Bill applies to all employers and persons conducting a business or undertaking (PCBUs), regardless of what type of business it operates or whether it is considered a small business.

What are the final changes?

The Respect@Work Bill will implement the following key amendments:

1.   Positive Duty

The Sex Discrimination Act 1984(Cth) (SD Act) will be amended to include a positive duty on employers and PCBUs to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation, as far as possible.

2.   Compliance with the positive duty

The AHRC will be granted authority to monitor and enforce compliance in instances where employers are not meeting the positive duty. Examples of the AHRC’s new powers include conducting inquiries, providing recommendations, issuing compliance notices, applying to the courts for an order to direct compliance and entering enforceable undertakings.

The AHRC will also prepare guidelines for employers and PCBUs in relation to complying with the positive duty.

3.   Hostile workplace environment

The SD Act will now expressly prohibit conduct that subjects another person to a workplace environment that is hostile on the ground of sex.

4.   Inquiries into systematic unlawful discrimination

The AHRC will be granted authority to inquire into instances (or suspected instances) of systematic unlawful discrimination, which is defined as unlawful discrimination that affects a class or group of persons and is continuous, repetitive or forms a pattern.

5.   Representative applications

The Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) will be amended to permit representative bodies, such as unions, to make applications to the courts on behalf of persons in relation to a terminated complaint.

6.   Costs

The AHRC Act will be amended to include certain circumstances that are to be considered by the courts when making cost orders, such as:

  • the financial position of the parties;
  • the conduct of the parties;
  • whether any party has been wholly unsuccessful in the proceeding;
  • whether any party has made an offer of settlement; and
  • whether the subject matter involves an issue of public importance.

7.   Victimisation

The Age Discrimination Act 2004 (Cth) (AD Act), the Disability Discrimination Act 1992 (Cth) (DDAct) and the Racial Discrimination Act 1975 (Cth) (RD Act) will be amended to include that victimising conduct can form the basis of a civil action for unlawful discrimination.

8.   Other amendments

The AD Act, DD Act and RD Act will be amended to extend the timeframe for making a complaint from six months to 24months after the alleged unlawful conduct took place.

When will the amendments take effect?

Most of the amendments under the Respect@Work Bill will take affect the day after receiving Royal Assent, to the exception of the new compliance powers of the AHRC, which will commence 12 months after Royal Assent.

What does the new positive duty require?

The amendment to the SD Act introduces a new positive duty on all employers and PCBUs to “take reasonable and proportionate” measures to eliminate, as far as possible:

  • discrimination on the grounds of sex;
  • sexual harassment, or harassment on the grounds of sex;
  • hostile workplace environments (for example, sexual banter, offensive jokes, distribution of pornographic material); and
  • acts of victimisation in response to allegations, assertions, complaints, proceedings.

This positive duty shifts the focus for employers from responding to acts of discrimination and harassment to proactively preventing discrimination and harassment in the workplace.

The new positive obligation is intended to complement the existing work health and safety framework which provides that employees must ensure, as far as reasonably practicable, the physical and psychological health and safety of its employees – which itself is a positive duty.

What employers need to do now?

Employers must proactively “take reasonable and proportionate measures” to comply with the new positive obligation to eliminate and prevent sex discrimination in the workplace.  This means that employers should now begin examining their policies and processes in relation to the oversight, education, and management of sexual harassment in the workplace.

Employers should consider the following measures to ensure compliance with the positive duty:

  • auditing and updating existing policies and procedures on sexual harassment, discrimination and victimisation to ensure that they accurately reflect the amendments under the Respect@Work Bill;  
  • implementing training on sexual harassment periodically for the purposes of educating employees, management, HR personnel, C-Levels and board members;
  • conducting a sexual harassment-specific risk assessment; and
  • monitoring the workplace environment and culture and responding to any risks or incidents.

How can we help?

As always, we are here to help all our valued clients as they navigate the amendments under the Respect@Work Bill which will soon come into effect.

Please do not hesitate to reach out to our Directors at sydney@workplacelaw.com.au or you can call (02) 9256 7500 if you require:

  • advicerelating to the new amendments;
  • a review of your existing policies or procedures; and/or
  • either in person or remote training on sexual harassment and discrimination, noting that we offer specific training that applies to sporting teams and organisations.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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