On 12 December 2022, the Respect at Work legislation will come into effect.
It is specifically named the Anti-Discrimination and Human Rights Legislation Amendment and it makes important changes to the Sex Discrimination Act 1984 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).
Where this has come from
In 2018 a National Survey was conducted with a sample of over 10,000 Australians (aged 15 to 65 and a variety of ages and geographic locations) measuring people’s experiences of sexual harassment.
The results suggest that more work is needed to encourage and support the action of bystanders in the workplace—people who witness or hear about the sexual harassment of another person at their work:
Then there was a national enquiry in 2020 that studied looked at Australian workplaces by conducting 60 consultations with more than 600 individuals participating in all capital cities and some regional locations across Australia as well as numerous roundtables and meetings with key stakeholders.
In 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 came into effect, making important changes to the Fair Work Act 2009 and the Sex Discrimination Act 1984 (Cth):
What it’s all about
Here’s the legal stuff…
Prohibit hostile environment:
It is now unlawful to subject a person to a workplace environment that is hostile on the grounds of sex, for example:
Positive duty on employers:
It is now the responsibility of the employer to take reasonable and proportionate measures to eliminate sexual and sex-based harassment, hostile environments and victimisation. This means proactive and preventative measures to eliminate workplace sexual harassment before it happens. Previously an employer’s obligation only kicked in when an employee made a complaint to the Human Rights Commission and the employer would answer to how they dealt with the complaint and resolved the issue. Now, employers are now liable for the behaviour of their employees unless they can show that they took proactive steps to prevent an alleged incident.
Enforce compliance:
The Australian Human Rights Commission (AHRC) have new powers to investigate compliance if they suspect an employer is not meeting their positive duty. However, there is a 12 month grace period to help employers prepare for these changes so these powers don’t apply until 13 December 2023.
Share legal costs:
If legal action is taken, both parties will bear their own costs, whether they win or loose.
Enable systemic inquiries:
The AHRC have new powers to inquire into systemic sexual harassment.
Allow representative applications:
Bodies such as unions, can bring claims to court on behalf of groups/individuals.
What it means for your business
The biggest shift for employers is to move from reactive and remedial action (i.e. investigating and resolving the problem once a complaint is made) to a more preventative approach (i.e. putting things in place now to prevent complaints from even occurring).
There are 4 key areas an employer can start with to achieve a safe work environment:
Where you can start
There are lots of things that can be done to prevent sexual and sex-based harassment, hostile environments and victimisation, but here’s some you can start with if you haven’t already got this in your workplace:
Changing culture doesn’t cost nearly as much as responding to legal complaints, so even one of these actions is better than doing nothing.
More information
There is a lot of great resources online to support you in implementing changes in your workplace. The first place to stop is the Respect @ Work website.
The AHRC website has a number of guidelines on upholding positive duty.
The Fair Work Commission has an Online Learning Portal
