Changes which will see employers required to take a far more proactive approach to prevent sexual harassment and discrimination in the workplace are just around the corner, with new legislation introduced into Federal Parliament today, as part of the continuing response to the Sex Discrimination Commissioner’s Respect@Work Report.
The new legislation, which seeks to give effect to seven outstanding recommendations from the Respect@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 relevant to employers in the Bill:
1. New Positive Duty on Employers: Under the changes employers will be required to take ‘all reasonable and proportionate measures’ to eliminate, as far as possible unlawful sex discrimination, including sexual harassment, sex based harassment, hostile work environments and victimisation. The meaning of ‘all reasonable and proportionate measures’’ will vary depending on the size and particularly circumstances of a business. For most businesses this will mean more than just simply having a policy and running training in order to meet this new positive duty obligation.
Businesses will have 12 months to understand their new obligations and implement any necessary changes before compliance and enforcement will commence.
2. New AHRC enforcement powers: The Australian Human Rights Commission (AHRC) will be given the power to monitor and assess employer compliance with the new positive duty on employers, including the power to conduct inquiries, issue compliance notices and enter into enforceable undertakings with business. The AHRC will also be empowered to initiate actions against employers to address unlawful discrimination, even without an individual making a complaint. These new AHRC powers will come into effect 12 months after the legislation has passed the Parliament.
3. Systematic inquiries into unlawful discrimination: The AHRC will be given a new right to inquire into suspected systematic unlawful behaviour, including systematic sexual harassment. These new powers will include the right to require businesses to provide information, produce documents as well as examine witnesses.
4. New offence of ‘subjecting a person to a hostile workplace environment on the grounds of sex’: The Respect@Work Report found that sexual harassment may occur where a workplace environment is sexually charged or hostile, even if the specific conduct is not directed at any particular person or employee. For example, a workplace that has offensive images or posters or where sexual jokes or innuendo is common place and can result in people feeling unwelcome or offended by the general environment. The Bill will explicitly make having such a hostile work environment an offence for employers.
5. New right for unions to bring claims in the Federal Courts: Currently unions are only able to initiate complaints on behalf of workers in the Australian Human Rights Commission, not the courts. Under the changes representative bodies, including unions would be able to make applications on behalf of people who have experienced unlawful discrimination, including sexual harassment in the Federal Courts.
6. New cost protections: As a default position, each party in unlawful discrimination cases, including sexual harassment, would be required to bear their own costs in court proceedings. The Courts would however retain discretion to make orders as to costs where they consider it just to do so, for example where one party has been wholly unsuccessful in a proceeding.
7. Complaints: Instead of the Human Right Commission being empowered to terminate a complaint where it relates to conduct that was more than six months old, under the Age Discrimination Act, Disability Discrimination Act and Racial Discrimination Act complaints will only be able to be terminated by the Human Rights Commission if the complaint relates to conduct that occurred more than 24 months before the making of the complaint. This change would align the Age, Disability and Racial Discrimination Acts with changes already made to the Sex Discrimination Act in 2021.
ABLA will provide a more detailed update once the legislation has passed the Parliament. For questions relating to any of the likely changes raised in the announcement, please contact firstname.lastname@example.org.