Implementation of the Respect@Work report recommendations.

What does this mean for your workplace?

When dealing with sexual harassment in the workplace, the onus has largely been on victims to make a complaint. The process is often traumatising and many victims either decide to withdraw the complaint or not make the complaint at all. The recent incidents in our own Federal Parliament can testify to the private and public anguish it can cause.

The Federal Parliament has recently passed legislative changes that give effect to recommendations of the Australian Human Rights Commission's (AHRC) Respect@Work Report (“the Report”). The Respect at Work Act 2022 (Cth) makes several changes to federal discrimination laws. Importantly, there is now a “positive duty” on employers to take "reasonable and proportionate" steps to eliminate sexual harassment and discrimination in the workplace. The duty extends to taking reasonable and proportionate steps to eliminate hostile work environments based on sex or gender.

This new duty will be policed by the AHRC who will be able to issue compliance notices and apply to the federal courts to ensure compliance. In addition to the new duty, the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) prohibits sexual harassment at work by explicitly defining the term.

This article explains how the changes will work and how you can prepare your workplace to avoid being caught unawares.

What is the new “Positive Duty” for employers?

The “positive duty” on employers will be inserted into the Sex Discrimination Act 1984 (Cth) (hereafter “the SDA”).1

The positive duty requires an employer or a person conducting a business or undertaking (PCBU) to take reasonable and proportionate measures to eliminate discriminatory conduct based on sex e.g. sexual harassment and victimisation.

The duty on each business would differ depending on their size, nature, resources and the circumstances of the employer’s business. Another factor will be the the practicability and the cost of the steps required to eliminate the discriminatory conduct. Nevertheless, a positive duty remains on each business.

The new positive duty will act concurrently with work health and safety (WHS) laws and state-based anti-discrimination legislation. For example, NSW recently passed an amendment to WHS regulations imposing a positive duty on employers to manage psychosocial risks and implement control measures to minimize them. A ‘psychosocial hazard’ is defined as a hazard that arises from the design, management, environment, plant or interactions at work, which may cause psychological or physical harm.

Hostile workplace environments

The SDA has also been amended to make it unlawful to subject a person to a “hostile workplace environment” on the ground of sex, whether or not their sex is the dominant or substantial reason. The Report made the point that while the courts have defined hostile work environments in the past, these definitions are not well understood by employers.

The test applied is whether, given the circumstances, “a reasonable person” would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating on the basis of the person’s sex or characteristic.

The factors to be considered when determining whether the conduct would be considered unlawful by a reasonable person include the seriousness of the conduct; whether the conduct was continuous or repetitive; the role, influence or authority of the person engaging in the conduct and any other relevant factors given the circumstances.

Examples of a hostile workplace environment include displaying obscene or pornographic materials, general sexual banter, innuendos and offensive jokes.

AHRC’s new enforcement powers

To ensure businesses are complying with the new positive duty under the SDA, the AHRC will be able to conduct inquiries about their compliance, provide recommendations to ensure compliance, and issue compliance notices outlining steps to address their non-compliance which can include entering into enforceable undertakings in accordance with the Regulatory Powers (Standard Provisions) Act 2014 (Cth).

Significantly, the AHRC can also apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order to direct compliance with the compliance notice. The AHRC, either on its own initiative or at the request of the Minister, will also be able to inquire about “systemic unlawful discrimination." This is defined as unlawful discrimination which "affects a class or group of persons" and "is continuous, repetitive or forms a pattern".

If a claim is made under the federal discrimination law, each party bears their own costs in making or responding to an application. However, the courts can make other costs orders where they consider it fair to do so.

Prohibition of sexual harassment and remedies are now included in the FWC

As a result of the new amendments to the Fair Work Act 2009 (Cth) (“the FW Act”), sexual harassment in the workplace will be explicitly prohibited. Victims will be able to seek compensation for breaches of the prohibition and unions can also make a claim on behalf of workers. If there are several victims at the workplace or involving the same offender, employees can make a joint application to the FWC. In addition to compensation, a “stop sexual harassment order” can be sought to prevent future harassment.

The employer can also be liable for breaching the prohibition if they did not take reasonable steps to prevent the sexual harassment. This is separate to the provisions in SDA mentioned early about the new positive duty which could mean the employer could also be issued with an enforcement order. However, the Applicants cannot “double-dip” by seeking compensation in both under the FW Act and anti-discrimination laws.

Powers of the Fair Work Ombudsman (FWO)

The FWO has powers to investigate breaches of workplace laws which will now include the prohibition on sexual harassment. The FWO can compel parties to produce documents, issue compliance notices and even commence civil court proceedings for compensation as well as penalties for contraventions.

Conclusion

The AHRC’s new compliance and enforcement powers will really change the way anti-discrimination and bullying training at the workplace is delivered. It will require both employers and employees need to play an active role in the prevention and reporting of incidents in their workplace.

Having passed parliament, the changes to anti-discrimination changes will take into effect shortly with the AHRC's new enforcement and investigative powers taking effect 12 months later. The prohibition on sexual harassment under the FW Act will come into force on 6 March 2023.

This will give employers the opportunity to understand their obligations, make the necessary changes at their workplace, including updating policies and providing training to management and staff about their new rights and obligations.

Unfortunately, many organisations only take formal workplace training on sexual harassment on an ad-hoc basis which raises the risk of breaches of the probation on sexual harassment in the workplace and/or failing to fulfil the new positive duty to prevent such behaviour.

So, what can an employer do to fulfil their positive duty?

You can contact us on 02 9261 1954 or by email at voice@voicelawyers.com. You can also use the link on our website to book a consultation to speak with one of our lawyers – Kathryn Lewis (Managing Director) and Cevdet Basiacik (Senior Lawyer).

This article is general in nature and is not legal advice. If you need help with an Employment Law matter and guidance on workplace policies and training, Voice Lawyers hear you. We help people navigate the complexities of the Fair Work Act and workplace relations system with confident, practical advice.

By Cevdet Basiacik