Changes to be introduced next year by the Federal Government will place an onus on employers to take a preventative, rather than reactive, approach to discrimination, harassment and other inappropriate behaviour in the workforce.
On 28 November 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at work) Bill (the Bill) was passed by both houses of parliament and now awaits royal assent. The Bill aims to provide a fresh approach to addressing workplace harassment and protecting workers from it.
This alert will be addressing the two key amendments and the other changes following the Bill.
Positive Duty
The Bill will amend the Sex Discrimination Act 1984 (Cth)
(SD Act) and introduce a new
method that imposes a positive duty on employers to take reasonable
and proportionate measures to prevent, so much as possible, any
discriminatory or harassing behaviour from occurring in the
workplace. The Bill will shift the emphasis of being reactive to
being proactive.
To enforce this positive duty, the Bill will be amending the
Australian Human Rights Commission Act 1986 (Cth). This amendment
will enable the Australian Human Rights Commission (AHRC) to
monitor, assess and enforce compliance with the positive duty by
allowing the AHRC powers to conduct inquiries, issue compliance
notices, apply to the Federal courts for compliance orders, and
enter into enforceable undertakings.
Hostile Workplace Environments on the Ground of
Sex
The bill will implement a new prohibition in the SD Act that will
prohibit conduct that subjects others to workplace environments
that are hostile on the grounds of sex. The AHRC found that sexual
harassment is more likely to occur in a workplace environment that
is sexually charged or hostile.
A sexually hostile workplace will be conduct that is offensive, intimidating, or humiliating to a person regarding their sex. This conduct can include the display of obscene or pornographic materials, general sexual banter, or innuendo and offensive jokes.
In determining the unlawfulness of the conduct, the following will be considered:
- 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 circumstances.
Other Changes
Other changes that the bill will introduce include:
- a mechanism to enable class actions to be brought to the Federal Courts on behalf of a group of people who have experienced workplace discrimination;
- a lower threshold for an allegation of harassment on the ground of sex from 'serious demeaning conduct' to 'demeaning conduct';
- an amendment towards the objects of the SD Act to provide for 'substantive equality' between men and women rather than 'equality of opportunity';
- a clarification that victimising conduct can form the basis for both a civil action and criminal complaint; and
- an extension to the timeframe for making complaints under the Anti-Discrimination Act 1991 (Cth), the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975 (Cth) from six months to 24 months after the unlawful conduct occurred.
Employer Takeaways
All amendments will commence the day after the Bill receives royal
assent, except for the compliance of the AHRC powers which will
come into effect 12 months after. Employers must be prepared for
the approaching changes to discrimination laws. In anticipation of
the bill, employers must carefully observe the risk factors
relating to their workplace environments and establish suitable
controls and performance standards to manage those risks.
We recommend that employers review their current procedures and
policies, reflect on their workplace culture, and ensure
appropriate workplace behaviour training is in place.
Employers will be required to do more than just implementing
another standard workplace policy to ensure they are abiding to the
preventive approach rather than the reactive approach.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.