In June 2018, the Sex Discrimination Commissioner, Kate Jenkins, and then Minister for Women, the Hon Kelly O’Dwyer, announced a National Inquiry into Sexual Harassment in Australian Workplaces to examine the prevalence, nature, drivers and reporting of sexual harassment, current legal and regulatory framework, and the impact of sexual harassment on individuals and business, as well as ways to improve prevention and response.
In March 2020, the Australian Human Rights Commission released the Respect @Work: Sexual Harassment National Inquiry Report (Report). The Report made 55 recommendations directed to all levels of government and the private sector for policy and legislative reforms to prevent and address workplace sexual harassment. The release of the Report in the midst of the COVID-19 pandemic did not result in the immediate widespread coverage of the proposed reforms.
So far, Victoria is the only jurisdiction to have a positive duty for employers to prevent sexual harassment under the Equal Opportunity Act 2010 (Vic). Last month, the Victorian Equal Opportunity and Human Rights Commission revealed the results of its first compliance investigation, targeting bakery chain Bakers Delight chosen not in response to an incident of sexual harassment but because of the recognition that bakeries, like many other retail environments, can be a high-risk workplace for sexual harassment, particularly for women and casual workers.
The Federal Government has expressed its commitment to imposing a nationwide positive duty on employers to specifically prevent sexual harassment in the workplace and on 27 September 2022 it introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Bill) which seeks to give effect to seven outstanding recommendations from the Report by amending the Sex Discrimination Act 1984 (Cth) (SDA).
The Bill will:
1. Place a positive duty on employers to take all reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.
The meaning of ‘all reasonable and proportionate measures’ will vary depending on the size and circumstances of a business. Businesses will have 12 months to understand their new obligations and implement any necessary changes before compliance and enforcement will commence.
In anticipation of these changes, employers should move towards a preventative model, and prepare to operate as though they have a positive duty to ensure that their workplace is free of all forms of discrimination, harassment and victimisation. Employers should look to review their internal practices by:
- ensuring all staff including managers and human resources understand what constitutes discrimination, harassment, and victimisation.
- developing and implementing updated policies and procedures that include a prevention plan.
- conducting training and education which communicate updated policies and procedures including awareness around the new inclusion of not subjecting someone to a hostile work environment (see further at point 3 below);
- conducting regular risk assessments to identify the likelihood of discrimination and harassment occurring and taking necessary steps to eliminate or control any risk factors.
- developing a complaints procedure that ensures complaints are dealt with promptly and efficiently; and
- frequently reviewing the workplace culture, policies and procedures and making proactive changes where required.
2. Strengthen the Australian Human Rights Commission (Commission) with new functions to monitor, assess and enforce compliance with the new positive duty.
This includes the capacity to give compliance notices to employers who are not meeting their obligations, the power to conduct inquiries and enter enforceable undertakings with business.
The Commission will also have the power to commence an action against an employer to address unlawful discrimination even without an individual making a complaint. The Commission’s new powers come into effect 12 months after the legislation has passed.
3. Prohibit conduct that results in a hostile workplace environment on the basis of sex.
A new offence of ‘subjecting a person to a hostile workplace environment on the grounds of sex’ is expressly created following the Report’s findings 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 posters or where sexual jokes are customary can result in people feeling unwelcome or offended by the general environment. Employers will need to ensure that they do not have workplaces with a hostile work environment and that they conduct training in relation to this new offence as noted earlier.
4. Implement cost protections in court proceedings.
Parties in unlawful discrimination cases, including sexual harassment, would be required to only bear their own costs in court proceedings rather than also bearing the costs of the other party should they be unsuccessful in their case. 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.
5. Introduce new right for unions to bring claims in the Federal Courts
Unions and other representative bodies would now be able to make applications on behalf of people alleging unlawful discrimination including sexual harassment in the Federal Courts rather than the current position which only allows the initiation of complaints on behalf of workers in the Commission.
6. Introduce systematic inquiries
The Commission will be given the ability to investigate suspected systematic unlawful behaviour including systematic sexual harassment including powers to require employers to provide information and documents.
7. Streamline complaint dismissal period
Complaints will only be able to be terminated by the 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 SDA in 2021.
Pointon Partners, Melbourne, Australia
Tel: +61 03 8625 8911