In brief - the Albanese Government has introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (the Bill) which would place a positive obligation on employers to eliminate, "as far as possible", sexual harassment and sex discrimination.
The Bill is in response to recommendations in the Respect@Work report prepared by the Australian Human Rights Commission (AHRC) in 2020. The report made 55 recommendations to "eliminate" sex discrimination, harassment, and victimisation in the workplace "as far as possible".
These were based on findings that 33% of working Australians had experienced workplace sexual harassment in the preceding five years.
The Bill, tabled in Parliament on Tuesday 27 September 2022 incorporates a further seven recommendations from the report (16, 17, 18, 19, 23, 25 and 43). While the government has not publicly committed to a timeframe for the second reading, it has indicated that the implementation of all the recommendations from the report is a priority.
Notably, this Bill seeks to impose a positive duty on employers to prevent workplace sexual discrimination and harassment. Attorney-General Mark Dreyfus told the House of Representatives:
"The focus on prevention of workplace sexual harassment and discrimination also shifts responsibility from those who experience that discrimination and harassment, to those who are best placed to prevent it: employers."
We've outlined the proposed legislative changes and the application for employers below.
Positive duty to eliminate unlawful sexual discrimination
As outlined in the Explanatory Memorandum, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth) 11-16 (EM), the Bill seeks to "introduce a positive duty on all employers and PCBU's to take reasonable and proportionate measures' to eliminate unlawful sex discrimination, including sexual harassment, sex-based harassment, hostile working environments, and victimisation as far as possible".
The Australian Human Rights Commission (AHRC) is tasked to enforce this duty and is granted broad inquisitorial powers - see EM 17-23.
These include powers to initiate inquiries where it 'reasonably suspects' an employer is not complying. Reasonable suspicion may arise from information or advice provided by other agencies, information disclosed by impacted individuals, or media reporting.
The AHRC may also enquire into systemic issues 'on its own motion' or at the request of the Minister.
Scope: this will extend to measures that prevent duty holders themselves from engaging in unlawful conduct, as well as their employees, workers, agents, and otherwise applicable third parties.
Application: what amounts to 'reasonable and proportionate measures' will vary depending on the employer. The EM (see (n 1) 14) indicates factors that may be considered including:
- the size, nature, and circumstances of the business or undertaking;
- the duty holder's resources, whether financial or otherwise; and
- the practicability and costs associated with the steps.
Takeaway: the Bill will likely 'shift the burden' away from workers and onto employers to take 'proactive and preventative action' - see (n 1) 5-10. The Explanatory Memorandum of the present Bill suggested the new provision will be in line with drafting of vicarious liability. Employers will need to be able to establish that they "took all reasonable steps" to prevent prohibited conduct in the workplace - see Sex Discrimination Act s 106(2) (SDA).
This could include, for example, proactive and consistent training initiatives, reviewing outdated policies, or developing new policies.
Further, employers must be aware that the Bill will increase access to complaints for employees, who now face fewer procedural barriers to bringing an application.
Ensuring employees are not subjected to a hostile workplace environment on the ground of sex
Effect: sexual harassment may occur where a work environment is sexually charged or hostile, even where the conduct is not directed at a particular person - see EM (n 1) 5-10.
The new provision is to use language consistent with existing provisions under the Sex Discrimination Act 1984 (SDA), so existing case law is applicable.
Application: a "hostile workplace environment" is one in which:
"a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the sex of the second person by reason of their sex or characteristics that generally appertain or are imputed to persons of their sex"
The EM suggests the following conduct may enliven the section: displaying obscene pornographic materials, general sexual banter, innuendo - see EM (n 1) 6.
Consideration will be afforded to:
- 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.
Takeaway: employers must take care to ensure that a culture of sex discrimination or harassment has not developed in their workplace.
The Bill provides key guidance, indicating that even acts that are not directed at any particular person can be subject to a complaint. If you haven't already, time to get rid of that locker-room calendar.
Extending the jurisdiction of representative applications
Effect: the Bill also extends the jurisdiction of representative bodies to make applications on behalf of individuals who have been discriminated against to include proceedings in the federal courts - see EM (n 1) 29-32.
Takeaway: now, if a union-represented employee has their application terminated in the Human Rights Commission in the first instance, employers will need to be prepared to potentially defend claims in the federal courts as well.
Costs protections provisions
Effect: the Bill incorporates a 'cost neutrality' condition as the default position, affording greater certainty to complainants of the potential costs they may face throughout the life of proceedings - see EM (n 1) 33-37.
Each party will be liable for their personal legal costs only unless the court deems it appropriate to make some other costs order.
Factors: in deciding to depart from the default position, courts may have regard to factors like the financial circumstances of parties, and whether any party has been wholly successful in their claim.
Takeaway: employers must be prepared for more empowered employees with stronger confidence to bring discrimination or harassment applications.
Additionally, employers may benefit from progressing cooperative defence strategies to increase the prospects they will not face an adverse costs order.
Finally, the Bill also proposes to:
- Implement changes so that victimisation can form both civil and criminal actions;
- Amend the objects of the SDA to state: "achieve substantive equality between men and women"; and
- Amend the SDA provision on sex-based harassment to remove the reference to conduct of a 'seriously' demeaning nature, lowering the threshold for complainants.
The Albanese Government is serious about implementing the Respect@Work Report recommendations. Employers must start thinking proactively, rather than reactively, to prevent sex discrimination and harassment in the workplace.