Recently, the Federal Government tabled the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (the Bill), which seeks to impose greater obligations on employers to ensure their workplaces are free from discrimination and sexual harassment
Here a some quick facts that will you help you get your head around your obligations.
Respect At Work Legislation Amendment
On the 27th of September the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 was introduced. This is in addition to the commitment from the federal government to implement all 55 recommendations of the Australian Human Rights Commission’s Respect@Work Report.
These reforms represent a significant change in the way sexual harassment in the workplace is treated.
Four Major Changes
1.The positive duty to prevent workplace sex discrimination, harassment and victimisation
The new provision introduces a positive duty on all employers to take ‘reasonable and proportionate measures’ to eliminate unlawful sex discrimination, including sexual harassment and victimisation, as far as possible.
This obligation extends to all those to whom the employer owes a duty under relevant WHS legislation, that is, employees, contractors and volunteers. What is reasonable and proportionate will depend on the employer’s operations, resources, the practicability of measures available and any other relevant matter.
2. Hostile Work Environments
The Bill will prohibit subjecting a person to a hostile workplace environment on the grounds of sex. Existing forms of sex discrimination legislation focus on conduct directed towards an individual. This amendment clarifies that sexual harassment may occur where a work environment or culture is sexually charged or hostile, even when the conduct is not directed at a particular person.
This clarification could put some employers at risk, for example male dominated environments, that turn a blind eye to what could “reasonably” be considered offensive.
The test is whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct being offensive, intimidating or humiliating to a person of the sex of the person impacted by the conduct.
3. Changes to the role of the Australian Human Rights Commission
The AHRC has been given new powers that will commence in 12 months, to:
- conduct inquiries into compliance with the positive duty, and to make recommendations on what should be done to meet that duty if it reasonably suspects there is not compliance
- issue compliance notices to address what must be done to meet the positive duty, and, where appropriate, apply to the courts for notices to require compliance with that notice
- enter into enforceable undertakings, and
- undertake inquiries into systemic or suspected unlawful discrimination, where it ‘affects a group of people and is continuous, repetitive or forms a pattern’.
4. Class Actions
The last major change relates to the power for representative bodies, such as unions, to bring representative actions in the federal courts.
Next Steps for Employers
Whilst you already have obligations to ensure workers are not exposed to risk from sexual harassment, the recent amendment of the legislation means that as an employer, you should be acting now.
Consider sexual harassment as both a discrimination & WHS issue
Sexual harassment in the workplace should be considered as both an employment/discrimination issue AND a WH&S issue, affecting ALL workers, including contractors & volunteers.
Conduct a risk assessment
Conduct a risk assessment, considering the drivers, to identify particular risk areas and workers at risk.
Focus on prevention, not reaction
Implement strong measures to not only respond to but PREVENT sexual harassment in the workplace. Updating policies and procedures is not enough.
Monitor your work environment
Sexual harassment is not behaviour targeting an individual, it can occur via workplace culture and “hostile work environments.” Ensure your culture is one of inclusion and void of offensive, humiliating or sexist comments, behaviours, or jokes.
Create a medium and long term plan on how these issues will be dealt with opposed to having a short term and ‘reactive’ response when the issue arises.
PerformHR understands this can be a delicate and confusing area of HR to navigate. Please reach out to your PHR consultant or to email@example.com to discuss any additional support you may need to ensure you are meeting your Respect@work obligations.