Respect@Work Bill passes Parliament

ON 12 DECEMBER 2022 THE ANTI-DISCRIMINATION AND HUMAN RIGHTS LEGISLATION AMENDMENT (RESPECT AT WORK) ACT 2022 (ACT) CAME INTO EFFECT. OUR HRNET BENEFIT PARTNER, MST LAWYERS, BREAKS DOWN WHAT THIS MEANS FOR HRIA MEMBERS.

The Act implements a number of recommendations made by the Australian Human Rights Commission in its Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report and has significant implications for all workplaces.

All changes introduced by the Act are now in operation, with the exception of the Australian Human Rights Commission’s new compliance and investigative powers, which come into effect on 12 December 2023.

HRIA members should be aware of the following key changes introduced by the Act:

1. Positive duty to eliminate unlawful sex discrimination

The Act confers a positive duty on a person conducting a business or undertaking (PCBU) to take reasonable and proportionate measures to eliminate, as far as possible, discriminatory conduct that includes:

• Sexual harassment;

• Harassment on the ground of sex;

• Discrimination on the ground of a person’s sex;

• Conduct that subjects a person to a hostile workplace environment on the ground of sex and;

• Acts of victimisation that relate to complaints, proceedings, assertions or allegations in relation to the bullet points above.

Notably, the positive duty applies not only to employers in respect to their employees, but to all PCBUs in respect of workers in the relevant business or undertaking.

This new positive duty means that employers and PCBUs are now required to proactively take steps to prevent the conduct from occurring, rather than simply responding to conduct that has already occurred.

2. Hostile workplace environments

The Act makes it unlawful for a person to subject another person to a hostile working environment on the ground of sex.

A person will be deemed to have subjected a person to a hostile workplace environment on the ground of sex if:

• The first person engages in conduct in a workplace where the first person or the second person, or both, work; and

• The second person is in the workplace at the same time as or after the conduct occurs; and

• 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 that person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.

Factors considered when ascertaining whether a person has been subjected to a hostile workplace environment on the ground of sex 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.

Conduct prohibited under the Act does not necessarily have to be directed at a specific person, it also prohibits conduct that results in a hostile environment for people of one sex. For example, conduct that may breach the new section may include displaying sexually explicit imagery, sexual innuendo, offensive jokes or insults of a sexual nature.

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3. Expanded compliance and investigative powers of the Australia Human Rights Commission

The Act amends the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) by expanding the compliance and investigative powers of the Australian Human Rights Commission (AHRC) to monitor employer compliance with their positive duty to eliminate unlawful sex discrimination.

Under the new powers granted by the Act, the AHRC can:

• Inquire into employer/PCBU compliance with the positive duty;

• Provide recommendations to the employer/PCBU to prevent a repetition of failing to comply with the positive duty;

• Issue a compliance notice specifying steps that an employer/PCBU must take, or not take, to address noncompliance; and

• Apply to the Federal Court or the Federal Circuit and Family Court for enforcement of a compliance notice.

These new AHRC powers listed above will come into effect on 12 December 2023, giving employers and PCBUs enough time to understand and take steps to discharge their positive duty.

There are additional AHRC powers that have already come in effect which empowers the AHRC to:

• Publish guidelines for complying with the positive duty;

• Inquire into any matter that may relate to actual or suspected systemic unlawful discrimination;

• Permit a representative body such as a union to make an application to the court on behalf of affected persons (which means that class actions for victimisation claims can now be brought the Federal Courts); and

• Terminate complaints if more than 2 years has passed since the alleged unlawful conduct took place.

4. Lowered threshold for the finding of harassment on the grounds of sex

The previous definition of harassment on the ground of sex under the Sex and other sex-based discrimination in their workplaces, noting that the AHRC’s investigative and enforcement powers will come into effect later this year.

Discrimination Act 1984 (Cth) was ‘unwelcome conduct of a seriously demeaning nature’. The Act redefines harassment on the grounds of sex as ‘unwelcome conduct of a demeaning nature’. The removal of the requirement for the unwelcome conduct to be “seriously demeaning” lowers the threshold for an allegation of harassment on the ground of sex.

HRIA members may consider taking the following steps to comply with the positive duty:

• Review and update policies dealing with sexual harassment to ensure that they explicitly set out expected behavioural standards. This may involve implementing a stand-alone sexual harassment policy in the workplace.

• Implement a training program for all staff about sexual harassment. This training can also be tailored to specific groups such as executives, managers, supervisors, human resources and service employees.

• Provide proactive reporting frameworks to deal with and manage reports of sexual harassment. Employees should clearly understand how to make a complaint/report and know that concerns about sexual harassment in the workplace are dealt with in an appropriate and timely manner.

• Assess what ‘reasonable and proportionate’ steps can be taken within the workplace to eliminate the risk of sexual harassment. What is considered ‘reasonable and proportionate’ will differ between every workplace.

5. Complaints under the Act can be submitted as a civil action as well as a criminal complaint

The Act amends all Commonwealth anti-discrimination legislation to clarify that victimisation claims can be submitted as a civil action as well as a criminal complaint.

What do these changes mean for HRIA members?

HRIA members should ensure that ‘reasonable and proportionate’ steps are taken to comply with their positive duty to eliminate sexual harassment

HRIA members are encouraged to contact MST Lawyers through the HRNet hotline support service if they have any questions in relation to this article or would like any assistance in complying with their positive duty.

“HRNet” is an initiative of the HRIA which gives HRIA members free access to a dedicated workplace relations support service operated by MST Lawyers.

HRIA members can speak to a specialised employment lawyer at MST Lawyers using the HRNet hotline in the member services area of the HRIA website www.hireandrental.com.au