A breakdown of the Respect@Work Bill 2022

The Bill will amend the Sex Discrimination Act to make it unlawful to subject a person to a workplace environment that is hostile on the ground of sex.

That is, an environment that a reasonable person would find offensive, intimidating or humiliating by reason of their sex, such as sexual banter, offensive jokes or having pornographic materials on show. The Report found that these behaviours create hostile cultures that increase the risk of harassment and discrimination.  

The Bill will impose a positive duty to take ‘reasonable and proportionate measures to eliminate sexual and sex-based harassment, hostile environments, and victimisation’. In other words, it puts the onus on employers to be proactive in preventing and eliminating workplace sexual harassment.

Under the changes, if an incident is alleged, employers will be liable for the conduct of its employees if they cannot demonstrate taking active steps to prevent it.

Current workplace health and safety laws impose a positive duty on employers to prevent sexual harassment in the context of the broad duty to eliminate or manage hazards and risks to a worker’s health, which includes psychological health and therefore sexual harassment.

However, the Report found that the ‘lack of an express WHS Regulation, Code of Practice or guideline means that workplace sexual harassment is not being addressed by WHS regulators or employers in a consistent, robust or systemic way’. 

In practical terms, it is not yet explicitly clear exactly what organisations will need to do to demonstrate they have taken proactive steps to prevent harassment. Legal experts suggest that some preliminary steps could include:

• Implementing leading practice policies and clearly and regularly communicating these to all employees
• Conducting regular risk assessments to identify and mitigate any factors that may cause discrimination or harassment
• Conducting education and training with all employees, including senior leadership to understand sexual harassment, gendered drivers, and how to respond as a bystander or a victim
• Ensuring timely, victim-centred complaints procedures, grievance mechanisms and whistle-blower avenues
• Consulting staff on workplace culture and making changes. 

The Bill will give the Australian Human Rights Commission (AHRC) new powers to assess compliance with positive duty obligations, if they suspect an organisation is not complying. This may be because of individual disclosures or media reporting. 

The Commission would be able to investigate compliance, make recommendations, issue compliance notices (including publicly naming companies), and direct that notice to be enforced at court.  

However, the Bill recognises it may take time for employers to understand and meet their obligations. It proposes a 12-month buffer for the Commission to provide support and education before enforcing compliance.

Sex Discrimination Commissioner Kate Jenkins has publicly stated that the AHRC wants to work with employers to help them prevent and respond to sexual harassment, and will support them to create gender inclusive, safe, and respectful workplaces.

The Bill will give greater powers to the Commission to inquire into systemic unlawful discrimination, including systemic sexual harassment. This forms part of the Report’s focus on prevention efforts, recognising the systemic and cultural drivers of workplace sexual harassment.

The Bill will allow representative bodies, such as unions, to bring representative claims to court on behalf of groups who have experienced unlawful discrimination.

Currently, they can only do so for individuals. 

Currently, the costs of legal action for a sexual harassment case are determined after a ruling or outcome, and generally require the loser to reimburse the winner at least a portion of costs incurred. The Report found that fears of the costs involved, should they lose, is deterring people from bringing complaints forward. 

Jenkins’ explains that the Bill’s proposed cost structure seeks to address this, by ensuring both parties bear their own legal costs whether they win or lose. The judge would also have discretion to make a cost order after the fact, if it’s in the interest of justice.

The Bill seeks to amend the Workplace Gender Equality Act to mandate commonwealth public sector agencies to report to WGEA in the same way that private sector organisations already do. This includes annual reporting across six gender equality indicators, including pay gaps, flexibility and parental leave, and sex-based harassment.