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Respect @ Work legislation is coming

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:

  • 1 in 3 people had been sexually harassed at work in the last 5 years (39% of women and 26% of men)
  • More than 69% of those who witnessed sexual harassment did not intervene
  • Less than 1 in 5 (17%) made a formal report or complaint


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.


As a result, 55 recommendations were made to Government and Australian employers to better prevent and respond to sexual harassment at work.


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):

  • Sex Discrimination Act changes:
    • Definition expanded to cover paid and unpaid workers and public officials
    • Applications through the Australian Human Rights Commission for sexual harassment previous had a time limit of 6 months, this was extended to 24 months
    • Sexual harassment is an express new form of unlawful conduct
    • prohibit conduct that results in a hostile workplace environment on the basis of gender for all employees and potential employees
  • Fair Work Act changes:
    • introducing definitions of ‘sexually harass’ and ‘sexually harassed at work’
    • Sexual harassment valid reason to dismiss an employee
    • Fair Work Commission can make ‘stop orders’ for sexual harassment
    • 2 days of paid (compassionate) leave entitlement if the employee or their current spouse or de facto partner has a miscarriage


With the change of Government in 2022, as was their campaign promise, majority of the 55 recommendations resulting from the inquiry were implemented.


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:

  • sexual banter
  • offensive jokes
  • acts of cruelty
  • having pornographic materials on show
  • treating someone with less authority
  • speaking over someone


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:

  1. Have a ZERO tolerance policy for unacceptable behaviour
  2. When reports are made, ensure they are treated seriously
  3. Ensure individuals who report concerns, won’t be further victimised
  4. If reports are substantiated, consistent consequences will be made regardless of the position of the person in the organisation


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:

  • Know your workforce, your culture, sub-cultures and values – be curious
  • Shift your thinking about it – taking proactive steps rather than waiting to deal with it once a complaint arrives
  • Speak with your entire staff about these changes
  • Write a sexual harassment policy
  • Ask your leaders to participate in training (like this one) in:
    • how to foster a safe work culture
    • how to respond if an employee makes a complaint
  • Survey your staff about experiences of sexual harassment
  • Treat employees who speak up as a resource to direct efforts in a proactive step towards in embedding long term culture change
  • Bring conversations about diversity, inclusion, respect and psychological safety into team meetings
  • If you’re a small business, WHS might be an easy place to focus


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


Future Women supports employers to lead the way in workplace diversity, equity and inclusion so check out their website too.


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