The [email protected] Act implements further recommendations of the Australian Human Rights Commission's (AHRC) landmark [email protected]: National Inquiry into Sexual Harassment in Australian Workplaces 2020.
The [email protected] Act has been described as "game changing" by Australia's Sex Discrimination Commissioner, Kate Jenkins.
Most significantly, the [email protected] Act (detailed in our earlier update) amends the Sex Discrimination Act 1984 to introduce:
- A new positive duty on employers and PCBUs ("Persons Controlling a Business or Undertaking") to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based discrimination and harassment, hostile workplace environments and victimisation. The Act expressly acknowledges that the new positive duty does not limit or otherwise affect a duty that an employer or PCBU has under work health and safety legislation.
- 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'.
An earlier proposed version of the [email protected] Act introduced 'cost neutrality' provisions, under which parties to unlawful discrimination/harassment proceedings would typically bear their own costs unless there were circumstances that justified the Court departing from this default position. However, the Government ultimately decided that this will be the subject of further consideration before any legislative change – in the meantime, the Court maintains a broad discretion to award costs as it sees fit (which may mean that an unsuccessful party can be required to pay the costs of the successful party).
What does this mean in practice?
The changes represent a significant and qualitative shift away from a complaint-based system to one where an organisation must proactively prevent its employees, workers, agents, and the organisation itself, from engaging in discriminatory/harassing conduct. An organisation is also responsible for protecting its employees and workers from being subject to discriminatory/harassing conduct by third parties, such as customers and clients.
In practice, the new positive duty will look different across organisations, depending on the circumstances. Organisations need to periodically undertake risk assessments to identify 'hotspots' and manage these risks, by adopting measures such as:
- Having leaders model, encourage and enforce desired behaviours to send cultural signals and demonstrate expectations;
- Requiring management to periodically provide to the Board de-identified data on discriminatory/harassing conduct with a focus on systemic issues and leading indicators;
- Having gender equality and other inclusivity strategies to reduce the prevalence of discriminatory/harassing conduct;
- Having a strong and clear policy on discrimination and harassment and providing regular training to staff to ensure they understand their workplace responsibilities, including in relation to bystander intervention;
- Using human-centred approaches to respond to reports of discriminatory/harassing conduct and investigations;
- Taking proportionate action where discriminatory/harassing conduct is found to have occurred;
- Balancing confidentiality with respectful transparency around incidents and organisational responses (once outcomes have been determined), including by rethinking the role of confidentiality clauses in sexual harassment matters.
The AHRC has recently launched a new [email protected] website with various resources to assist organisations to comply with the new positive duty and other obligations, including guidelines and fact sheets on the use of confidentiality clauses in the resolution of workplace sexual harassment matters.
The AHRC will also have the power to monitor and assess compliance with the new positive duty and to inquire into systemic unlawful discrimination as part of changes introduced by the [email protected] Act. These powers come into force on 12 December 2023 and allow the AHRC to, amongst other things, publish compliance notices. Kate Jenkins considers that this power increases transparency and accountability in the workplace and serves to educate organisations about what compliance looks like (Sydney Morning Herald, 6 November 2022).
The Government has also introduced the following related amendments to the Fair Work Act 2009 by enacting the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.
New prohibition on sexual harassment and powers of the Fair Work Commission (FWC)
The amendments expressly provide that a person must not sexually harass another person who is a worker or seeking to become a worker, or a PCBU. This means that it is unlawful for a person (including third parties such as clients and customers) to sexually harass employees, contractors, subcontractors, outworkers, apprentices, trainees, students and/or volunteers, as well as prospective workers.
The amendments allow an individual worker(s) or union(s) to apply to the FWC to make a 'stop sexual harassment' order and/or deal with a dispute. 'Stop sexual harassment' orders (similar to 'stop bullying' orders) can be made if the FWC is satisfied there is a risk of sexual harassment continuing. The FWC can deal with a dispute application by any means other than arbitration (e.g. mediation, conciliation, recommendation, expressing an opinion). If the matter remains unresolved the FWC can arbitrate the matter by consent or a Court application can be made.
New vicarious liability provisions mean a worker can seek a remedy from their organisation, in addition to the alleged offender, where the organisation did not take all reasonable steps to prevent the sexual harassment.
These amendments will come into effect on 6 March 2023 (or earlier by proclamation).
New protected attributes
The amendments (which commenced on 7 December 2022) expand current anti-discrimination provisions to protect attributes related to gender identify, intersex status and breastfeeding. This means, in practice:
- an employer must not take adverse action against an employee because of these attributes;
- modern awards must not include terms that discriminate against an employee because of these attributes; and
- a term of an enterprise agreement is a discriminatory term to the extent it discriminates against an employee because of these attributes.
The amendments to the Fair Work Act and Sexual Discrimination Act ultimately mean organisations that fail to take reasonable steps to prevent workplace sexual harassment may be subject to enforcement action and/or civil penalties.
How can we help you?
Taking proactive steps to address discriminatory and harassing conduct and tackle problematic cultures will help to create respectful, productive workplaces.
We can not only assist you with actionable insights in achieving legal and regulatory compliance, but also present you with opportunities to thrive within a physically and psychologically safe workplace.