On 27 September 2022, the Australian Government introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022.
This long-anticipated Bill implements a number of key recommendations from the Australian Human Rights Commission’s Respect@Work report, including the positive duty upon employers to take reasonable and proportionate measures to prevent sex discrimination, sexual harassment and victimisation.
As is the case in a number of jurisdictions, the prevention and management of responses to sexual harassment continues to be a focus for employers and the introduction of the Bill will only increase this focus in Australia.
We have highlighted below the key proposed reforms contained in the Bill. Useful guidance on the steps employers can be taking now to prepare is available here.
Coverage and operation
The Bill creates a ‘positive duty’ within the Sex Discrimination Act 1984 (Cth) (SDA) requiring employers or a person conducting a business or undertaking (PCBU) to ‘take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment, victimisation, and conduct that is prohibited under the new section on ‘hostile workplace environments’. We explain the new section concerning ‘hostile workplace environments’ below. The term ‘PCBU’ is directly adopted from model work health and safety (WHS) legislation, which covers a broader range of individuals and entities than ‘employer’.
What is the positive duty?
Duty holders will be required to ‘take reasonable and proportionate measures to eliminate, as far as possible’ sex discrimination, sexual harassment, victimisation, and conduct that is unlawful under the new provisions relating to ‘hostile workplace environments’.
The Explanatory Memorandum provides that discharging the positive duty may ‘involve implementing policies and procedures, collecting and monitoring data, providing appropriate support to workers and employees, and delivering training and education on a regular basis’.
The Bill provides that the following are to be taken into account in determining whether a duty holder has complied with the duty:
From a WHS perspective, the positive duty brings into focus some of the recent WHS developments (nationally) in the psychosocial space. Sex discrimination, sexual harassment, victimisation, and conduct constituting hostile workplace environments are clear examples of behaviours that can lead to psychosocial risks in the workplace, relevant to duties under WHS legislation.
There is some overlap between the matters that are to be taken into account in determining whether a duty holder has complied with the positive duty and those which fall within what is ‘reasonably practicable’ under WHS. In complying with the positive duty, organisations should approach any risk assessment through both a SDA and a WHS lens to ensure that they are complying with all their relevant duties.
The Bill amends the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to create an enforcement regime for the positive duty. It gives the Australian Human Rights Commission (AHRC) the power to:
The Bill provides that the AHRC may apply to the federal courts for an order to enforce the compliance notice or undertaking. Employers and PCBUs will be entitled to dispute a compliance notice, or apply to the federal courts for review.
The AHRC will also be empowered to ‘name and shame’: it may publish enforceable undertakings on its website.
Under the proposed legislation, an individual would not be able to make a complaint to the AHRC and seek a remedy for a breach of the positive duty. Instead, compliance would rest with the AHRC. The AHRC would have the power to initiate an inquiry if it ‘reasonably suspects’ that a person is not complying with the positive duty. This could be based on information or advice from other agencies, individuals or the media, among others, according to the explanatory memorandum.
The Bill amends the SDA to make it unlawful ‘to subject another person to a workplace environment that is hostile on the ground of sex’.
The Respect@Work Report recommended this amendment because it formed the view that, while courts have already determined that conduct resulting in a hostile work environment may be captured through existing provisions of the SDA, this is not well understood or recognised by employers and PCBUs.
The Bill defines a ‘hostile work environment’ as an environment that is:
‘offensive, intimidating or humiliating [to a person] by reason of 2 or more matters that include the sex or characteristic, whether or not the sex or the characteristic is the dominant or substantial reason’.
Examples in the explanatory memorandum of a hostile work environment include ‘displaying obscene or pornographic materials, general sexual banter, or innuendo and offensive jokes’.
The Bill adopts the existing ‘reasonable person test’ from the SDA in determining what conduct is unlawful. That is: whether ‘a reasonable person, having regard to 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 the sex of the second person by reason of’ the person’s sex or characteristic.
The circumstances to be taken into account for the purposes of the reasonable person test include:
The Bill would permit the ARHC to inquire, on their own motion, ‘into any matter that may relate to systemic unlawful discrimination or suspected systemic unlawful discrimination’.
‘Systematic unlawful discrimination’ is defined as unlawful discrimination that ‘affects a class or group of person’ and ‘is continuous, repetitive or forms a pattern.’
The Bill provides that the AHRC may publish a report in relation to any inquiry. However, it must not make an adverse finding about a person unless it has given them a reasonable opportunity to make an oral or written submission.
The Bill amends the AHRC Act to enable representative bodies to make representative applications in the federal courts on behalf of people who have experienced unlawful discrimination. This includes trade unions. Currently, representative bodies can only initiate representative applications before the Commission, not the federal courts.
The Respect@Work Report recommended that representative applications could address systemic problems that affect a wide class of person and provide a mechanism for genuine cases to be heard. This recognised the complexities of the court system can be difficult and costly for individuals.
The Bill amends the AHRC Act to provide that ‘each party is to bear that party’s own costs’. However, a court will retain discretion to award costs in some circumstances. This will depend on a range of factors including the financial circumstances of the parties and whether the party has been wholly unsuccessful in the proceedings.
The approach adopted in the Bill does not go as far as the model recommended in the Respect@Work Report: that parties bear their own costs unless a party has acted vexatiously or unreasonably. Instead, the Bill seeks to create ‘greater certainty around the costs’ that parties may incur, and ‘provides greater flexibility to award costs to successful parties if it would be appropriate to do so, rather than only considering the conduct of the parties’.
Although the costs recommendation has been watered down, the provisions in the Bill nevertheless represent a significant departure from the status quo in federal court proceedings, and it is expected that this will result in an increase of proceedings in this jurisdiction.
The Bill is currently subject to an inquiry before the Senate Legal and Constitutional Affairs Legislation Committee. Submissions to the inquiry close on 12 October 2022 and the Committee is due to report on the Bill by 3 November 2022.
Based on this timeline, the legislation is expected pass in late November 2022 during the final parliamentary sitting weeks of the year. However, the Government has not confirmed this timing. We expect the Bill will be passed with limited resistance and without significant amendments.
Employers should note that although the substantive positive duty will commence the day after the Bill receives Royal Assent, the more significant compliance functions and powers the Bill confers upon the AHRC will not commence until 12 months after the Bill receives Royal Assent. This is to give both the AHRC and duty holders time to prepare for the new regime.
#sexdiscrimination #genderdiscrimination #sexualharassment #workplacebullying #Australia
For more information about discrimination
