Earlier this month, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Act) was passed, making significant changes to sexual harassment laws under the Sex Discrimination Act 1984 (Cth) (SD Act).
The changes were made in line with the 55 recommendations from the report (Respect@Work: Sexual Harassment National Inquiry Report (2020)) that arose from a national inquiry into sexual harassment in 2018. The recommendations aim to help reduce the prevalence of workplace sexual harassment.
This legislation complements enhanced protections against sexual harassment which formed part of the recently enacted Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) which are summarised here.
Positive duty to eliminate sexual harassment and more
The most significant changes to the SD Act are:
- imposing a positive duty to eliminate sexual harassment on employers and a person conducting or undertaking (PCBU) to take ‘reasonable and proportionate’ measures to eliminate sexual harassment and sex discrimination in the workplace;
- expanding the Australian Human Rights Commission’s (AHRC) investigation and enforcement powers;
- an express prohibition on conduct that subjects a person to a hostile workplace environment on the grounds of sex;
- lowering the thresholds of findings of harassment on the grounds of sex;
- clarification that victimising conduct can form the basis of civil action for unlawful discrimination as well as a criminal complaint; and
- changes to the timeframes for making a complaint under anti-discrimination legislation.
Reasonable and proportionate steps
Under the changes to the SD Act, employers or a PCBU will now need to ensure they take ‘reasonable and proportionate’ measures to eliminate, as far as possible, conduct that includes sexual harassment, sex discrimination and victimisation.
When determining whether the positive duty has been discharged, the following factors will be considered:
- the size, nature and circumstances of the duty holder’s business or undertaking;
- the duty holder’s resources, financial or otherwise;
- the practicability and cost of steps to eliminate conduct covered; and
- any other relevant matter.
The positive duty will mean that both employers and PCBUs will be required to not just respond to conduct brought to their attention, but also put in place measures that will proactively prevent such conduct from occurring to begin with.
Expansion of AHRC powers
Amendments have been made to allow the AHRC to monitor and address employer and PCBU compliance with the newly implemented positive duty. This will now allow the AHRC to:
- conduct inquiries into compliance;
- provide recommendations to employers and PCBU to prevent a failure to comply with their positive duty;
- provide compliance notices specifying actions that an employer or PCBU must or must not take;
- apply to a number of courts for the enforcement of compliance; and
- enter into enforceable undertakings with employers and PCBUs in regards to actions or compliance.
Express provision against hostile workplace environments
The SD Act will now make it expressly unlawful for a person to subject another person to a workplace environment that is hostile on the grounds of sex.
The test to determine this will be:
- whether a person is subject to conduct in the workplace by reason of their sex or characteristics to do with their sex; and
- where a reasonable person (having regard for all the circumstances), would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of that sex.
Threshold of findings of harassment on the grounds of sex
The changes remove from the definition of ‘harassment on the grounds of sex’, the requirement for the alleged wrongdoer to have engaged in unwelcome conduct of a ‘seriously demeaning’ nature. This now means that the conduct is only required to be considered of a ‘demeaning nature’ rather than having to satisfy the additional limb that had been required before the changes.
Victimising conduct
The Act has also made amendments to all Commonwealth anti-discrimination acts to clarify that victimising conduct can now form the basis of a civil action for unlawful discrimination (in addition to a criminal complaint).
The Age Discrimination Act 2004 (Cth) (AD Act), the Disability Discrimination Act 1992 (Cth) (DD Act) and the Racial Discrimination Act 1975 (Cth) (RD Act) have now been amended to clarify that victimisation can now form the basis of both civil unlawful discrimination and as a criminal offence under the SD Act.
This amendment is in line with the amendments made in 2021 by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth), which also made the same amendments to the SD Act and the AHRC Act.
Changes to timeframes
Previously, under the AD Act, DD Act and RD Act, the AHRC has the discretion to terminate complaints made more than six months after the alleged unlawful conduct took place. However, this has now been changed to 24 months since the unlawful conduct took place.
What does this mean for organisations?
The changes require employers to take action, even if to check their existing policy and training frameworks to ensure they discharge the new positive duty. Some tips for employers include:
- updating any sexual harassment or disciplinary procedures to ensure they are in line with the standards that arise from the amendments;
- updating any training or information that is provided to employees in line with the amendments;
- proactively conducting a risk analysis to identify any risks relating that to sexual misconduct; and
- ensuring employees have a clear method of reporting any sexual misconduct claims.
How we can help
Moores can help you to identify the necessary steps to ensure your organisation is compliant with the new amendments. This includes updating policies, providing internal training to staff and assisting with internal investigations into misconduct.
Get in touch with the Workplace Relations team at Moores if you or your organisation need any assistance with these matters.
Contact us
Please contact us for more detailed and tailored help.
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