Employers will be responsible for stopping sexual harassment and discrimination at work under new laws passed by Federal Parliament last week.
Importantly, there will now be a positive duty on employers to prevent sexual harassment and discrimination in the workplace so it is critical that businesses seek advice and take action to ensure they are prepared for these changes.
To assist with this, CCIWA today (December 8) launched a free Respect@Work Health Check — a self-rated online assessment tool designed to help business assess their legal compliance associated with these changes to sexual harassment and discrimination laws.
The short online assessment will provide both a total score, plus a breakdown of legal compliance performance.
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 implements seven further legislative changes recommended by Sex Discrimination Commissioner Kate Jenkins in her Respect@Work report, released in March 2020.
The previous Coalition Government enacted some of the recommendations in its Respect at Work Amendment Act, which came into effect in September 2021.
The new legislation places the onus on employers to take “reasonable and proportionate” measures to eliminate sexual discrimination, sexual harassment and victimisation in the workplace as much as possible.
This means it is now the employer’s responsibility to actively take meaningful action to prevent harassment from occurring in the workplace.
In releasing the Bill, the Government said that although courts have determined that conduct that results in a hostile work environment may be captured through existing provisions of the Sex Discrimination Act, this was not well understood or recognised by employers and persons conducting a business or undertaking (PCBUs).
In part, the Bill sets out the meaning of subjecting a person to a hostile workplace environment, which includes a requirement that a reasonable person would have anticipated the possibility of the conduct being offensive, intimidating or humiliating to someone by reason of their sex or characteristics that generally appertain or are imputed to persons of their sex.
The circumstances to be considered when determining whether the conduct is unlawful include:
- the seriousness of the conduct;
- whether the conduct was continuous or repetitive;
- the role, influence or authority of the person engaging in the conduct; and
- any other relevant circumstance.
The provision is intended to align with other provisions in the Sex Discrimination Act by using existing terms and concepts, such as ‘offensive, intimidating or humiliating’ and the reasonable person test. This would enable existing case law to be considered when interpreting and applying the new provision.
The inclusion of this provision largely duplicates existing obligations under the respective Work Health and Safety legislation to take reasonable steps to provide a safe workplace, including minimising the risk of harassment and discrimination.
The Australian Human Rights Commission will also be given new powers to assess and enforce compliance with the positive duty obligations, including the capacity to give compliance notices to employers who are not meeting their obligations.
Other changes include:
- introducing a law that expressly prohibits conduct that results in a hostile workplace environment on the basis of sex; and
- ensuring Commonwealth public sector organisations are also required to report to the Workplace Gender Equality Agency on its gender equality indicators.
For more resources see our Getting Employment Right Hub.
Members can contact CCIWA’s Employee Relations Advice Centre for advice on sexual harassment matters on (08) 9365 7660, or email email@example.com.
If you would like one of our employment lawyers to contact you directly, you can email BusinessLawWA@cciwa.com.