The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect@Work Bill) was passed by the Federal Parliament on Monday, 28 November 2022, implementing 7 of the 55 recommendations of the Respect@Work report published in 2020. The amendments will:
- create a positive duty on employers and persons conducting a business or undertaking (PCBU’s) to actively take steps to prevent workplace sexual harassment, discrimination on the grounds of sex and victimisation;
- create an express prohibition on conduct that creates a hostile workplace environment on the basis of sex; and
- increase the investigation and enforcement powers of the Australian Human Rights Commission (AHRC).
Positive Duty to Prevent Sexual Harassment and Hostile Work Environments
Employers will be required to implement ‘reasonable and proportionate measures’, to prevent, as far as possible, workplace sexual harassment, discrimination on the grounds of sex and victimisation. What is reasonable and proportionate will depend on, among other things, an employer’s size, its resources and the cost of implementing proposed measures.
The Respect@Work Bill also introduces a prohibition on hostile workplace environments on the basis of gender. A hostile workplace environment is defined as a workplace where a worker is subject to conduct which can reasonably be considered to be offensive, intimidating or humiliating to a person on the basis of sex. Examples of what might constitute a hostile work environment includes banter of a sexual or offensive nature and the presence of sexually suggestive material in the workplace. The new prohibition is far- reaching and is intended to protect not just employees but also workers, contractors, prospective workers, clients and other visitors to a workplace.
Increased AHRC Powers
The AHRC gains new powers to undertake monitoring and investigations in relation to compliance with the new laws at their own instigation if necessary. The AHRC will be able to assess a workplace for compliance and issue recommendations and compliance notices. Failures to comply with a notice issued by the AHRC will enable the AHRC to apply to the Federal Court for enforceable orders, directions and undertakings.
What should employers do now?
- Employers should proactively and regularly monitor their workplace culture (from the top down) to ensure that they are not falling foul of the new obligations. They will no longer be able to turn a blind eye to previously accepted lewd conduct or banter, even if it is of a ‘mild’ nature.
- Employers should review and update any existing harassment and discrimination policies to encompass the new provisions and to educate the employees on them.
- Employers should have in place timely and comprehensive procedures for handling complaints and should instigate the disciplinary process where necessary.
- Additional measures such as data collection and monitoring, and the provision of relevant support services to employees will likely be necessary to demonstrate a business’s genuine efforts to actively prevent sexual harassment.
- Employers should also consider how to protect their employees conducting employer business in situations or locations where the employer has little to no control over the workplace.
If you require assistance in relation to any of the information provided above, Pragma’s Employment lawyers can provide advice to you and your business to minimise your future risk. Contact us today by clicking here or call us on (08) 6188 3340.