New obligations and prohibitions from the [email protected] Act
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 received Royal Assent 12 December 2022. It amends the Sex Discrimination Act 1984 (Cth) and Australian Human Rights Commission Act 1986 (Cth) (amongst others). Most changes commenced on 13 December 2022 (although there is 12-month grace period for the Australian Human Rights Commission's new compliance powers.)
The following changes apply now:
- A new positive duty on employers and people conducting a business or undertaking (PCBUs) to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based discrimination and harassment, hostile workplace environments and victimisation.
- An express prohibition against subjecting another person to a workplace environment that is hostile on the ground of sex
- A lower threshold for sex-based harassment, by requiring the conduct to be 'demeaning' rather than 'seriously demeaning’.
New compliance powers for the Australian Human Rights Commission will apply from 13 December 2023. They will enable the Commission to enforce the positive duty and investigate systemic unlawful discrimination. Representative actions can be brought in the Federal Courts from 13 December 2023 as well.
The [email protected] Act has changed the priority and focus of the Sex Discrimination Act to the systemic prevention of sexual harassment, sex-based harassment and discrimination, hostile work environments and victimisation. It does so by imposing a positive duty on employers and PCBUs to take reasonable and proportionate measures to eliminate this conduct as far as possible.
Now it is no longer sufficient for organisations to respond to these behaviours by simply relying on those affected to make complaints, particularly at a time when they are vulnerable. The harm has already occurred by that stage. Multiple surveys and data indicate that these behaviours are significantly under-reported in Australia. The most recent Australian Human Rights Commission survey on sexual harassment in Australian workplaces reported that only 18% of sexual harassment incidents are reported.
New obligations and prohibitions under the Fair Work Act
Over 150 amendments to Fair Work Act 2009 (Cth) received Royal Assent 6 December 2022. Amendments to protected attributes commenced on 7 December 2022. A new prohibition on sexual harassment and new Fair Work Commission powers commenced on 6 March 2023.
The amendments include a new prohibition on sexual harassment in connection with work, which:
- Prohibits sexual harassment (as defined in the Sex Discrimination Act) in relation to a worker, a person seeking to become a worker, or PCBU.
- Extends vicarious liability to employers unless the employer took ‘all reasonable steps’ to prevent the conduct, which is the subject of the contravention.
Contravention of the prohibition on sexual harassment attracts a civil penalty (up to 60 penalty units for an individual and 300 penalty units for a body corporate.)
New Fair Work Commission powers have been introduced to make stop sexual harassment orders and/or deal with a sexual harassment dispute. These new dispute powers include:
- A new power for the Fair Work Commission to deal with sexual harassment disputes and resolve them via mediation, conciliation, recommendation, expression of opinion or arbitration by agreement; and
- A right to make an application to the Federal Courts if the dispute is not resolved.
Proceedings under the WHS Act and stop sexual harassment order or dispute applications can progress at same time. However, a person can’t make both a sexual harassment stop order or dispute application to the Fair Work Commission and bring a claim under the Sex Discrimination Act in the Australian Human Rights Commission.
The new sexual harassment jurisdiction is led by Commissioner McKinnon and the case management process is underpinned by trauma-informed practice.
In addition, the recent amendments expand protected attributes under the Fair Work Act to gender identity, intersex status and breastfeeding.
Updated duties under the Workplace Health and Safety Act
Sexual harassment falls within an organisation's Workplace Health and Safety (WHS) obligations. This means that organisations have a raft of obligations and other positive duties to meet their regulatory requirements. These are consistent with [email protected] and Fair Work obligations.
Primarily, this means that a Person controlling a business or undertaking (PCBU) (such as an employer) has a duty to provide a safe workplace to the extent that it's reasonably practicable. There are other duties, including those that apply to workers and also to officers. While duties vary from jurisdiction, at a high level workers have a duty to take reasonable care of themselves and others – for example, by not engaging in sexual harassment of a colleague.Officers must ensure the PCBU is meeting its duties by exercising due diligence.
WHS laws now define psychosocial hazards and risks. The new regulations have some variations across states and territories where the changes have been implemented, but are broadly consistent.
A PCBU must deal with a psychosocial hazard in the same way that they are dealing with other safety hazards. The definition of psychosocial expressly includes interactions and behaviours in the workplace and includes sexual harassment.
Managing psychosocial hazards is all about risk identification and the duty to manage those risks.
For a PCBU, compliance means:
- identifying risks and hazards
- supervising and training workers in relation to this hazard
- monitoring systems and reviewing them on an ongoing basis
- consulting with workers
Organisations need to stop thinking about sexual harassment in terms of a reactive response. To manage risk, it has to now be proactive, keeping records and documents that detail how organisations identify, assess and monitor the risk of sexual harassment in their workplaces. Having access to good data, and learning from that data to inform strategy and prevention, is essential.”
Kristy Edser, Partner.
An emerging system to prevent sexual harassment and hostile workplaces
Once we look at all three frameworks together, a picture of an Australian system to prevent sexual harassment and hostile workplaces emerges.
With multiple avenues of redress, regulators and legislation to comply with – how can organisations navigate this complexity?
In short, they need build the foundation for a respectful, flourishing and high performing culture - and sustain that culture over time. Once that is done, and regularly monitored so people come to trust that proscribed behaviours will not be tolerated and will be appropriately dealt with in a timely and human-centered way, the behaviours will stop and legal compliance will be taken care of.
Read our article on How to create respectful workplaces.