New Respect@Work legislation introduced

On 27 September 2022, the Albanese Government introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth) (the Bill) into Parliament.

If passed, the Bill would implement further recommendations from Sex Discrimination Commissioner Kate Jenkins’ report, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Respect@Work Report) namely:

• making it unlawful to subject another person to a hostile workplace environment on the ground of sex;
• creating a positive duty on employers to eliminate unlawful sex discrimination by requiring employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, unlawful sex discrimination (including sexual harassment), acts that subject others to a hostile workplace environment on the ground of sex, and acts of victimisation;
• creating a mechanism for enforcement of the positive duty, including conferring powers on the Australian Human Rights Commission (AHRC) to inquire into a duty holder’s compliance with the positive duty and issue compliance notices requiring duty holders to take action to address failures to comply. These amendments will not come into force until 12 months after the Bill receives Royal Assent, meaning that employers will have some time to prepare before the positive duty can be enforced;
• granting new powers to the AHRC to inquire into systemic unlawful discrimination or suspected systemic unlawful discrimination. Following such an inquiry, the AHRC may report to the Minister and/or publish a report in relation to the inquiry;
• allowing representative bodies, such as unions, to initiate representative complaints in the federal courts. Currently, representative complaints can be made to the AHRC, however representative bodies cannot make an application to the federal courts if the matter is not resolved and is terminated by the AHRC;
• removing cost barriers to applicants pursuing discrimination complaints in the federal courts by providing that each party is to bear their own costs in such proceedings, while allowing the court to make costs orders where there are circumstances that justify it in doing so; and
• requiring the Commonwealth public sector to report to the Workplace Gender Equality Agency annually on gender equality indicators, bringing it into line with private sector reporting requirements.

Employers should have particular regard to the new, much anticipated, positive duty to eliminate unlawful sex discrimination.

What does this mean for employers?

Given these changes, and particularly the new positive duty on employers to eliminate unlawful sex discrimination, it is critical that employers consider what is being done within their business to address and eliminate unlawful sex discrimination. At the very least, the new positive duty will likely require employers to:

• have clear policies in place, which make it clear that sex discrimination (including sexual harassment) is against the law and that employees may face disciplinary action, up to and including the termination of their employment, for breaches of such policies;
• ensure that employees are aware of the policies and receive appropriate training; and
• ensure that any complaints about unlawful sex discrimination are dealt with appropriately.

The Bill specifically recognises that the size, nature and resources of the employer will be relevant in determining whether or not it has complied with the positive duty. Larger businesses should therefore take particular care to ensure that compliance with the duty is embedded at all levels of its organisation (including at the board level) and that appropriate risk assessments are done to determine the risk of unlawful sex discrimination occurring across the business. Further steps should also be implemented to verify compliance on an ongoing basis such as board reports including metrics on these activities.

The Bill also confers on the AHRC the function of preparing and publishing guidelines for complying with the positive duty in relation to sex discrimination. While it will ultimately be a matter for courts to determine whether or not an employer has complied with the positive duty, it would be reasonable to expect that courts will have regard to guidance published by the AHRC. As such, employers should be mindful of any such guidance in implementing measures to ensure compliance with the positive duty.

Other changes

In addition to the changes outlined above, the Bill would amend the Age Discrimination Act 2004 (Cth), the Disability Discrimination Act 1992 (Cth) and the Race Discrimination Act 1975 (Cth) (the Anti-Discrimination Acts) to mirror amendments that were made to the Sex Discrimination Act 1984 (Cth) in 2021. Those amendments:

• clarify that victimisation under the Anti-Discrimination Acts can form the basis of a civil action brought by an individual complainant; and
• extend the timeframe within which applicants can pursue complaints under the Anti-Discrimination Acts by including a provision which allows the President of the AHRC to terminate a complaint if it is made more than 24 months after the alleged unlawful conduct took place (rather than the current 6 months).

The Workplace Advisory and Disputes Team at Gadens regularly provides advice about discrimination matters, including sexual harassment, and is able to assist you with any queries.

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Authored by:

Louise Rumble, Partner
Emma Anderson, Senior Associate