Respect @ Work Bill Passes – What Businesses Need to Know

On 28 November 2022, coincidentally being the International Day for the Elimination of Violence Against Women, the much anticipated Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect at Work Bill) passed both houses of parliament.

The Respect at Work Bill implements seven recommendations from the 55 recommendations made in the Respect@Work Report, which arose from the National Inquiry into Sexual Harassment in Australian Workplaces conducted in 2020.

Positive duty to prevent workplace sex discrimination, harassment and victimisation

The most significant change introduced by the Respect at Work Bill is the inclusion of a new positive duty to take ‘reasonable and proportionate measures’ to eliminate, so far as possible, the following:

• discrimination on the ground of sex;
• unlawful sexual harassment;
• unlawful harassment on the ground of sex;
• workplace environments that are hostile on the ground of sex; and
• acts of victimisation in respect of complaints, proceedings, assertions or allegations concerning the prohibited conduct set out above.

The new duty is owed by all employers and ‘persons conducting a business or undertaking’ (PCBU), which encompasses organisations that conduct a business or undertaking (irrespective of the legal structure) such as sole traders, partnerships, and incorporated and unincorporated associations.

The duty is owed to employees of the employer as well as anyone who is a ‘worker’ of the PCBU, including contractors, subcontractors, labour hire workers, outworkers, apprentices, trainees and volunteers.

The Respect at Work Bill makes clear that what will be considered ‘reasonable and proportionate measures’ will be assessed on a case-by-case basis having regard to the particular circumstances of a business, including its size, its resources (financial or otherwise) and the practicality and costs associated with the measures that may be available to be implemented.

Nevertheless, employers and PCBUs will no longer be able to react to incidents of sex-based discrimination and harassment. Rather, the new duty requires preventative steps to be taken.

Prohibiting hostile work environments on the ground of sex

The Respect at Work Bill also makes it unlawful for a person to engage in conduct that subjects another person to a workplace environment which is hostile on the ground of sex.

The new prohibition will be contravened where:

• the conduct occurs at a workplace;
• either the person impacted by the conduct, or the perpetrator, works at that workplace;
• the person impacted is at the workplace when the conduct occurs or after the conduct occurs; and
• a reasonable person, having regard to all the circumstances including the seriousness of the conduct, whether the conduct was repetitive and the role and influence or authority of the person engaging in the conduct, would have anticipated the possibility of the conduct being offensive, intimidating or humiliating to a person of the sex of the person impacted by the conduct.

An employee may act unlawfully if they engage in conduct at work that creates an offensive, intimidating or humiliating environment for other employees, or for clients/customers who are at the workplace, on the basis of sex. A customer or client who visits a workplace also may act unlawfully if they engage in conduct whilst at the workplace that creates an offensive, intimidating or humiliating environment on the basis of sex for employees.

Importantly, there is no need for the unlawful conduct to be directed at a specific person, only that it results in an offensive, intimidating or humiliating environment for people of one sex.

The existing vicarious liability provisions under the Sex Discrimination Act 1984 (Cth) will continue to apply. That is, an employer will be vicariously liable for the unlawful conduct of an employee or agent unless it can show that it has taken all reasonable steps to prevent the employee or agent from engaging in the unlawful conduct.

Other changes

The Respect at Work Bill also:

• lowers the threshold for an allegation of harassment on the ground of sex from ‘serious demeaning conduct’ to ‘demeaning conduct’;
• expands the types of organisations that are required to submit public reports to the Workplace Gender Equality Agency to include certain Commonwealth public sector entities; and
• introduces a mechanism to enable class actions to be brought in the Federal Courts on behalf of a group of people who have experienced unlawful discrimination (including by unions).

Relevantly, the Respect at Work Bill confers additional powers on the Australian Human Rights Commission (AHRC) to inquire into an employer or PCBU’s compliance with the positive duty to prevent workplace sex discrimination referred to above, including the ability for the AHRC to initiate legal proceedings to address unlawful discrimination.

However, the expanded investigative and enforcement powers of the AHRC will only take effect 12 months after the Respect at Work Bill receives Royal Assent, which is intended to provide employers and PCBU’s a 12-month grace period to better understand and comply with their new duties.

What businesses should be doing now

Despite the 12 month-grace period for the AHRC’s investigative and enforcement powers, it is important to note that all of the duties introduced by the Respect at Work Bill will take effect immediately following Royal Assent of the Bill.

Accordingly, all employers and PCBU’s should be taking steps now to ensure that they are in a position to comply with their new duties and obligations. These steps include:

• conducting a risk assessment to understand the organisation’s risk exposure having regard to its systems of work and work culture with a view to identifying potential gaps;
• reviewing, and updating where necessary, the organisation’s policies and procedures; and
• considering the need for further staff training
  
  

This article provides general commentary only. It is not legal advice. Before acting on the basis of any material contained in this article, seek professional advice.