Respect@Work - Employer Obligations
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Late September, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 was introduced to Parliament by the Government. The new bill, when passed, will legislate the final 7 recommendations from the Respect@Work report.
What are the key changes and what do they mean for employers?
Specific prohibition of hostile workplace environments.
A hostile work environment is one where one person’s conduct results in the workplace environment being offensive, intimidating or humiliating to a second person of a particular sex, meaning, a court looks at the behaviour itself, not what the person intended or how the second person received it.
A positive duty to take reasonable and proportionate measures to eliminate unlawful sex discrimination, including sex discrimination, sexual and sex-based harassment, hostile work environments and victimisation.
Organisations are required to take reasonable and proportionate measures to eliminate, as far as possible sexual harassment, harassment on the ground of sex, hostile workplace environments or acts of victimisation against persons relating to their complaints, proceedings, assertions or allegations of any of that conduct. Reasonable and proportional measures will vary, depending on the circumstances of a particular workplace. It depends on the size, nature and circumstances of the business, the available resources (ie, financial or otherwise), the practicality and costs of those measures and other relevant matters. For example, larger and better resourced organisations will need to implement more extensive measures.
Examples of positive duty may include:
Updating policies and procedures to reflect positive duty requirements including education and reinforcement of commitment and polices in Town Halls, Newsletters or Toolbox Talks
High quality training
Conduct is no longer required to be seriously demeaning to be unlawful harassment on the ground of sex.
This reduces the threshold and makes it easier for applicants to make out claims of harassment on the ground of sex.
The Australian Human Rights Commission (AHRC) gain powers to enforce the positive duty.
Including with guidelines, education, inquiries, compliance notices, court orders and enforceable undertakings.
The AHRC will be able to conduct inquiries into systemic unlawful discrimination.
Unions can more easily commence Federal Court representative actions for at least one person.
Possibly paving the way for class actions.
A neutral costs approach under which each party will bear their own costs in sexual harassment proceedings.
While not yet passed into law, it is very likely to be passed and enacted into law. Under the new laws, having a policy in place, together with some training and minimal other control measures is unlikely to satisfy the positive duty. Employers will be required to have clear and thorough control measures in place to identify and prevent these inappropriate behaviours.