The Respect@Work Report ("Report") was released in March 2020 following a national inquiry and contained 55 recommendations. The recommendations contained ways the legal framework could better prevent and address sexual harassment in the workplace.
The Morrison Government introduced a number of the recommendations in 2021 (see our article here). Among the changes was the ability of the Fair Work Commission ("FWC") to make stop sexual harassment Orders and the definition of serious misconduct in the Fair Work Regulations being amended to include sexual harassment.
One of the significant recommendations made by the Respect@Work Report was the introduction of a positive duty on employers to take reasonable measures to eliminate sex discrimination and sexual harassment in the workplace. However, the recommendation was not introduced in 2021.
Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022
The Albanese Government committed to implementing the Respect@Work recommendations in full and this week introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 ("Bill"). The Bill seeks to implement a further seven recommendations, including the positive duty on employers to eliminate sex discrimination and sexual harassment in the workplace.
The explanatory memorandum to the Bill states that the changes will "significantly strengthen the legal and regulatory frameworks relating to sexual harassment in Australia" and "expand the role of the Commission in preventing sexual harassment and other forms of sex discrimination".
The key changes
The Bill introduces they following key changes.
- The Sex Discrimination Act 1984 will expressly prohibit conduct that creates a hostile work environment.
- All employers will have a positive duty to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.
- The Australian Human Rights Commission ("AHRC") will have additional powers to monitor, assess and enforce compliance with the positive duty. The AHRC will also be given broad inquiry functions to investigate systemic unlawful discrimination and sexual harassment.
- Unions and other representative groups will be able to bring representative claims to Court.
- Applicants will have additional cost protections as each party is to bear their own costs.
- The Workplace Gender Equality Act 2012 will be amended to require public sector organisations to report to the Workplace Gender Equality Agency on its gender equality indicators. This brings the public sector into line with the private sector.
Time for compliance
The AHRC will have its powers broadened and will be able to initiate an inquiry into an employer's compliance with the positive duty if it reasonably suspects that they are not complying. These new functions of the AHRC will commence 12 months after the Bill is passed. This means employers will have a period of time to properly understand their obligations and achieve compliance with the legislation. The explanatory memorandum also envisages that this time will be used by the AHRC to prepare and publish guidance materials on the positive duty.
We recently wrote about the introduction of positive duties and what it means for employers (read our article here). We will continue to closely follow the progress of the Bill and provide updates in relation to the changes and obligations of employers.