Government to make good on Coalition’s “missed opportunity”? Proposed legislation to implement further Respect@Work recommendations
Introduction of new Respect@Work Bill
On 27 September 2022, the Government introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (New Bill) seeking to implement the remaining legislative recommendations under the Respect@Work Report.
On 29 January 2020, Kate Jenkins, the Australian Human Rights Commission’s Sex Discrimination Commissioner, delivered Respect@Work: Sexual Harassment National Inquiry Report. The Report followed a comprehensive national survey of employees in Australian workplaces and found that “Workplace sexual harassment is prevalent and pervasive”. Significantly, the Report advocated a new approach to preventing, and responding to, sexual harassment.
The Report included a total of 55 recommendations, with some 12 of those expressly addressed toward legislative reform at the Federal level.
In September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth) (Earlier Bill) – addressing six of the recommendations – was passed.
At the time, the Earlier Bill was criticised for what it left out.
In particular, Recommendation 17 of the Report called for amending the Sex Discrimination Act 1984 (Cth) (SDA) to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.
The Report emphasised that sexual harassment needs to be viewed through a work, health and safety prism, shifting the emphasis to risk identification, minimisation and management. The employer needs to be pro-active, not simply re-active.
Despite sustained attempts by the (then) opposition and the Greens, Recommendation 17 was not included in the Earlier Bill. Indeed, the (then) government suggested that it was unnecessary as the positive duty already arose under work health and safety legislation and it wished to avoid duplication.
Implementation of election promise
In campaigning during the Federal election, Labour pledged to implement all 55 recommendations in the Report.
And it now appears it is making good.
On 27 September, the Government introduced the New Bill. Describing the New Bill in the Explanatory Memorandum as a critical “suite of reforms .. for ensuring safer, respectful and more equitable workplaces in Australia”, it includes the following proposed amendments:
- Positive duty: the EM acknowledges both the existing obligations under the WHS laws, as well as the existing obligation under section 106 of the SDA to take all reasonable steps to prevent sexual harassment in order to avoid vicarious liability, meaning “employers should already be preventing discrimination and harassment by their employees or agents in order to manage their potential liability under the SD Act”. However, the EM further explains “it is intended that the model WHS laws and positive duty in the SDA would operate in a mutually reinforcing way to build safer and more respectful workplaces”
- AHRC powers: the Bill proposes to amend the Australian Human Rights Commission Act to empower the AHRC to monitor and assess compliance with the positive duty. This recognises the Report’s finding that the AHRC should be able to initiate action, operating to ease the burden individuals impacted by sexual harassment to make and prosecute complaints
- Hostile work environment: the Bill proposes amendments to the SDA to prohibit conduct that subjects another person to a hostile workplace environment on the ground of sex. This is designed to capture conduct such as such as displaying obscene or pornographic materials, general sexual banter, or innuendo and offensive jokes, which although not necessarily directed at a particular individual, can create a sexually charged or hostile environment causing one sex to feel unwelcome. The EM further notes 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.
- Sex-based harassment: the Earlier Bill inserted 28AA into the SDA, to include new prohibition against harassment on ground of sex (as opposed to conduct of sexual nature) where on the ground of sex: the person engages in unwelcome conduct of a seriously demeaning nature in relation to the person harassed; and
- the person does so in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. The New Bill proposes to remove the reference to conduct of a ‘seriously’ demeaning nature to ensure the threshold is not unnecessarily high to make out a claim.
Where to from here?
There is little doubt that the New Bill will be passed into law. As observed in the EM, given obligations under section 106 of the SDA in order to avoid vicarious liability, employers should already have systems, policies and processes in place for preventing and responding to sexual harassment. However, now is a good time to review your organisation’s approach to ensure it is not only compliant, but reflects best practice. The McCullough Robertson Employment Relations and Safety team are well placed to assist you and your business in assessing your workplace policies and complaint handling mechanisms and can be contacted here.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.