Australia: Respect@Work Bill to strengthen sexual harassment prevention requirements in the workplace

In early 2022, The Federal Government committed to implementing all 55 of the recommendations given by the Australian Human Rights Commission (the AHRC) in the Respect@Work: National Inquiry into Sexual Harassment in the Workplace (2020) Report (the Report).

Further to that commitment, the Anti-Discrimination and Human Rights Legislations Amendment (Respect at Work Bill 2022) (Cth) (Bill) was introduced into Parliament on 27 September 2022 which seeks to implement 7 of the 55 recommendations from the Report.

Findings of the Respect@Work Report

The Report made 55 recommendations which focussed on preventing and addressing sexual harassment in the workplace. The Report recommended a number of legislative amendments to strengthen and clarify the legal and regulatory framework relating to sexual harassment and increase the focus on prevention.

The Report concluded that the existing frameworks relating to workplace sexual harassment are complex, difficult to navigate, overly reactive (rather than focusing on prevention), and place a significant burden on individuals who experience sexual harassment, to make a complaint.

Proposed Respect@Work Bill amendments

The Bill proposes to include the following:

1. A prohibition on conduct that subjects another person to a workplace environment that is hostile on the ground of sex.
2. The introduction of a positive duty on all employers and PCBUs to take "reasonable and proportionate measures" to eliminate unlawful sex discrimination, including sexual harassment, as far as possible.
3. Enabling the AHRC to monitor and assess compliance with the positive duty.
4. Providing the AHRC with a broad inquiry function to inquire into systemic unlawful discrimination or suspected systemic unlawful discrimination.
5. Enabling representative bodies to make representative applications in the federal courts, on behalf of people who have experienced unlawful discrimination.
6. The introduction of a "cost neutrality" approach, providing a default position that each party would bear their own costs in an unlawful discrimination proceeding.
7. Requiring Commonwealth public sector organisations to report to the Workplace Gender Equality Agency.

We go through each of these proposals in more detail below.

1. Subjecting a person to a hostile workplace environment on the ground of sex

The Bill proposes to amend the Sex Discrimination Act 1984 (the SD Act) to insert a prohibition on conduct that subjects another person to a workplace environment that is hostile on the grounds of sex. That is, an environment that exposes them to sexual harassment and/or sexual discrimination.

The Bill sets out the meaning of subjecting a person to a hostile workplace environment, which includes the requirement that:

". (c) 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:

The circumstances to be considered when determining whether the conduct is unlawful include:

• 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 circumstance.

2. Positive duty to eliminate unlawful sex discrimination

The Bill proposes to introduce a positive duty on all employers and PCBUs, to take 'reasonable and proportionate' measures to eliminate unlawful sex discrimination, including sexual harassment, as far as possible. It would also include specified forms of unlawful sex discrimination under the SD Act, including:

• sex discrimination;
• sexual and sex-based harassment;
• hostile work environments; and

The proposed changes require that measures be taken to prevent this conduct being engaged in by duty holders, employees, workers and agents, and third parties. The Explanatory Memorandum suggests that this may involve:

• implementing policies and procedures;
• collecting and monitoring data;
• providing appropriate support to workers and employees; and
• delivering training and education on a regular basis.

This proposed change shifts the focus from addressing and responding to conduct that has already occurred, to requiring employers to proactively prevent discrimination and harassment in their workplaces to achieve compliance with the SD Act.

In assessing compliance with the duty, several factors are to be considered, including:

• the size, nature and circumstances of the business;
• the duty holder's resources (financial or otherwise); and
• the practicality and costs associated with the steps.

These considerations would ensure that the positive duty is adaptable and can be applied by all employers and PCBUs.

This duty is intended to align with s 106 of the SD Act, which relates to the vicarious liability of employers for unlawful acts done by their employees or agents. The duty is also intended to operate concurrently with the existing duties in the model Work Health Safety laws, requiring employers and PCBUs to provide a safe working environment for workers, so far as reasonably practicable.

3. AHRC to monitor and assess compliance with the positive duty

The Bill would insert new provisions in the Australian Human Rights Commission Act 1986 (AHRC Act), enabling the AHRC to monitor and assess compliance with the proposed positive duty in the SD Act.

The Report recommended that the positive duty be accompanied by an appropriate enforcement mechanism to help ensure it is effective and employers engage with their legal obligations.

The Bill proposes to confer a number of functions on the Commissioner to monitor and assess compliance with the positive duty, including:

• conducting inquiries into a person's compliance with the positive duty and provide recommendations to achieve compliance;
• issue a compliance notice specifying the action that a person must take, or refrain from taking, to address their non-compliance;
• applying to the federal courts for an order to direct compliance with the compliance notice; and
• entering into enforceable undertakings in accordance with the Regulatory Powers Act.

4. Powers of the AHRC to inquire into systemic unlawful discrimination

The Bill would insert a new provision into the AHRC Act to provide the AHRC with a broad inquiry function into systemic unlawful discrimination, or suspected systemic unlawful discrimination, including systemic sexual harassment, on its own motion.

The Bill would define "systemic unlawful discrimination" to mean unlawful discrimination that "affects a class or group of persons" and "is continuous, repetitive or forms a pattern."

5. Representative bodies to make representative applications

The Bill proposes to amend the AHRC Act to enable representative bodies to make representative applications in the federal courts on behalf of people who have experienced unlawful discrimination.

6. Introduction of a "cost neutrality" approach

The Bill proposes to introduce a "cost neutrality" approach whereby, as a default position, each party would bear their own costs in an unlawful discrimination proceeding. Courts would retain their discretion to depart from this default position and make a costs order where they consider it just.

7. Commonwealth public sector organisations to report to the Workplace Gender Equality Agency

The Bill proposes to amend the Workplace Gender Equality Act 2012 (Cth) to bring the Commonwealth public sector in line with the private sector by requiring Commonwealth public sector reporting to the Workplace Gender Equality Agency.

The reporting program will require agencies to report annually on six gender equality indicators.

Changes to the Fair Work Act

On 11 September 2022, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect at Work Amendment Act) took effect.

The Respect at Work Amendment Act changed the Fair Work Act 2009 by:

• introducing definitions of "sexually harass" and "sexually harassed at work";
• expanding the anti-bullying jurisdiction of the Fair Work Commission to allow it to make orders to stop sexual harassment at work; and
• clarifying that sexual harassment in connection with an employee's employment can be valid reason for dismissal.

The Respect at Work Amendment Act also enables an employee to access their compassionate leave entitlement if the employee or their current spouse or de facto partner has a miscarriage.