Published February 2023

On 28 November 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (“the Act”) passed both houses of Parliament and introduced some substantial changes to Australia’s discrimination and sexual harassment laws.

The provisions of this Bill introduce a number of new obligations on you as an employer including a positive duty to take reasonable and proactive measures to eliminate sexual harassment and sex discrimination in the workplace.

The Australian Human Rights Commission’s (AHRC) enhanced powers to enforce and investigate compliance, without individuals needing to make complaints, will come into effect 12 months after the Act received Royal Assent. The Act received Royal Assent on the 12 December 2022.

What you need to know

The Respect at Work Bill applies to all employers in Australia, as well as all employees, contractors, and volunteers working for these businesses or organisations. This covers all aspects of the workplace, from in-person interactions to online communications.

The Act introduces several changes designed to ensure a workplace free of sexual harassment, sex discrimination and victimisation. The key changes include:

1. Introducing a new positive duty on employers to take ‘reasonable and proactive measures to prevent and eliminate sexual harassment, victimisation and conduct that causes a hostile workplace environment on the ground of sex’.

These make an employer vicariously liable for the acts of harassment ( or other unlawful discrimination) unless the employer can demonstrate that it has taken reasonable steps to prevent those acts. When looking at the employer’s position duty compliance, the following will be taken into consideration:

• the size, nature and circumstances of the employer’s business;
• the employer’s resources, whether financial or otherwise;
• the practicability and the cost of steps to eliminate the conduct; and
• any other relevant matters (such as whether or not the employer operates in an industry that is dominated by one sex, will also be relevant in determining the steps that must be taken).

2. The Sexual Discrimination Act will now expressly prohibit conduct that subjects another person to a hostile workplace environment on the ground of sex. This may include displaying obscene or pornographic materials, general sexual banter, and offensive jokes which result in one sex feeling unwelcome or excluded.

3. The Australian Human Rights Commission (AHRC) will have the authority to monitor and enforce compliance on these matters when employers are found to not be meeting their obligations. AHRC is allowed to perform investigations into compliance with the new positive duty mentioned above, as well as investigate general unlawful discrimination.

4. Allowing representative claims to be brought in the Federal Court on behalf of more than one person. The Australian Human Rights Commission Act 1986 (Cth) will be amended to allow representative bodies, e.g. unions, to make applications to the Federal Court on behalf of persons in relation to a terminated complaint.

5. The AHRC has extended the timeframe from 6 months to 24 months to make a complaint(s) relating to alleged unlawful conduct (after the alleged acts, omissions or practices giving rise to the complaint took place).

Next steps for employers

These are significant changes for employers. To ensure compliance, it will not be as simple as having a relevant policy about sexual harassment – remember, the new positive duty requires ‘reasonable and proactive measures to prevent and eliminate sexual harassment, victimisation and conduct that causes a hostile workplace environment on the ground of sex’.

All employers should review their current practices and consider the following measures:

• Audit and where appropriate review and update existing policies and procedures on sexual harassment, discrimination, and victimisation to ensure they reflect the many obligations under the Respect@work Bill. Visit the following website (https://www.respectatwork.gov.au/) recently launched by the AHRC to help employers prevent, and workers respond to, workplace sexual harassment.
• Implement regular training for all employees on Sexual Harassment, discrimination and victimisation for the purpose of educating all employees, setting expectations and eliminating risks.
• Improve WHS practices and conduct a sexual harassment specific risk assessment to identify the likelihood of discrimination and harassment occurring, and measures to eliminate or control hazards/risks.
• Monitor the workplace environment and culture, implementing adequate reporting processes and procedures.
• Ensure leadership roles are leading by examples, promoting a safe, respectful, and equitable workplace, including ensuring proactive steps are taken and appropriate due diligence is happening also.

Edwards HR can assist you to comply with these new obligations and proactively eliminate sexual harassment, sex discrimination and hostile work environments. Please do not hesitate to reach out if you need any assistance, particularly with policies and team training.