Employers will now have a positive duty to prevent sexual harassment and discrimination
Employers will now have a positive duty to prevent sexual harassment and discrimination in their workplaces.
In 2020, the Respect@Work Report was released by the Australian Human Rights Commission (AHRC), making 55 recommendations for legislative change to address and prevent sexual harassment.
The former government implemented the majority of the Report’s recommendations in September 2021. Those changes included the introduction of:
compassionate leave for miscarriages
“stop sexual harassment orders” to be available in the Fair Work Commission (like the “stop bullying orders” already available)
a prohibition on harassment on the ground of sex
sexual harassment as a “valid reason” for dismissal
Though they were reluctant to impose 7 of the recommendations within the Respect@Work report, including a recommendation to impose a positive duty on employers to prevent sexual harassment.
Yesterday the new Albanese Government introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Bill) to implement the further 7 recommendations which the former government had resisted.
The most significant change is that the Sex Discrimination Act (SD Act) will impose a positive duty on all employers to take “reasonable and proportionate measures” to eliminate unlawful sex discrimination, sexual harassment and hostile work environments, as far as possible.
The previous framework was considered overly reactive and placed significant burden on individuals who experience sexual harassment to make a complaint.
The aim of the legislative change is to shift that burden from individuals making complaints – to employers taking proactive and preventative action.
There will now be a higher threshold imposed on employers. It will not be sufficient for an employer to rely upon complaint based models. Employers will need to review their workplace culture, actively take steps to prevent sexual harassment and discrimination, and continually assess and evaluate whether they are meeting their positive duty.
The Explanatory Memorandum to the Bill states that measures could involve implementing workplace policies and procedures, collecting and monitoring data, providing appropriate support to workers, and delivering training and education on a regular basis.
In addition to the positive duty on employers, the Bill has also introduced a prohibition on conduct that subjects another person to a “hostile work environment”. This aims to address workplace environments that are sexually charged or hostile, even if the specific conduct is not directed at a particular person. This can include conduct such as general sexual banter, or innuendo and offensive jokes which can result in people of one sex feeling unwelcome or excluded from the general environment.
The Bill also expands the role of the AHRC in preventing sexual harassment and discrimination, and it can now initiate action against employers as opposed to waiting on an individual to make a complaint.
Representative bodies, such as Unions, will also have the ability to bring action on behalf of one or more workers.
The AHRC is expected to release some guidance material on how employers can meet their positive duty, but for now, we recommend that employers take the following action:
review and update their current sexual harassment and discrimination policies (even if they have a current grievance policy which broadly deals with any workplace complaint, we recommend implementing a specific policy addressing the preventing of workplace sexual harassment and discrimination)
review onboarding procedures to ensure adequate training on sexual harassment and discrimination is given to new starters (and providing a copy of relevant workplace policies and procedures)
deliver training to all employees on preventing and reporting sexual harassment and discrimination in the workplace (including on any relevant workplace policies and procedures)
deliver specialised training to managers in relation to responding to sexual harassment and discrimination in the workplace, and contributing to a workplace culture which does not tolerate such conduct
review the workplace environment to remove any offensive or inappropriate material
display anti-sexual harassment and discrimination posters within the workplace
Although an employer’s positive duty will extend beyond implementing workplace policies to address sexual harassment and discrimination, a good first step for employers is to review and update their current workplace policies to ensure they are compliant with the proposed legislation.
You can contact our employment law team if you have any questions about your obligations as an employer, or need help to update your current workplace policies.