Respect @ Work Bill: New legislative amendments and next steps for employers

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Respect at Work Act 2022) was passed by Parliament on 28 November 2022.

It implements a number of the recommendations in the Respect@Work Report released following the National Inquiry into Sexual Harassment in Australian Workplaces in 2018 and has significant implications for all workplaces.

What will change?

The key changes arising from the Respect at Work Act 2022 are:

• A positive duty on all persons conducting a business or undertaking (PCBU) to take ‘reasonable and proportionate measures’ to eliminate, as far as possible, workplace sexual harassment, victimisation and sex discrimination;

• New powers granted to the Australian Human Rights Commission (AHRC) to assess and enforce compliance with the positive duty in relation to sex discrimination;

• An express prohibition on conduct that results in a hostile work environment on the ground of sex;

• Introducing "cost neutrality" cost protection provisions for complainants; and

• The requirement for Commonwealth public sector organisations to report to the Workplace Gender Equality Agency.

These changes (and others) will impact the Sex Discrimination Act 1984 (Cth) (the SD Act), Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) and Workplace Gender Equality Act 2012 (the WGE Act).

Positive duty to eliminate workplace sexual harassment

Crucial for employers will be the obligation to take proactive steps to prevent sexual harassment, sex-based harassment, victimisation and hostile workplaces on the ground of sex. In other words, the amendments to the SD Act require employers to proactively implement measures to prevent such conduct from occurring in the first place, rather than simply responding to instances of such conduct.

Factors that will be considered when determining if PCBUs have taken ‘reasonable and proportionate measures’ include the size, nature and circumstances of the organisation, its resources (whether financial or otherwise), and the practicability and cost of steps to eliminate such conduct.

Importantly, the positive duty applies not only to employers in respect of their employees, but to all PCBUs in respect of workers in the relevant business or undertaking (such as contractors, volunteers, apprentices, work experience students), as well as third parties like clients and suppliers.

Expanded powers for the AHRC

The AHRC Act has been amended to provide the AHRC with a broad inquiry function to inquire into systemic unlawful discrimination, including systemic sexual harassment.

Such amendments include allowing representative bodies such as unions to make a ‘representative application’ to the Federal Court on behalf of a member in relation to a terminated complaint.

Complaints under any anti-discrimination legislation may now only be terminated after 24 months have passed since the alleged unlawful conduct took place, instead of the previous 6 month timeframe. This change ameliorates the complications that arose as a result of the amendments made to the SD Act by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth).

Further, using its new investigative and enforcement powers, the AHRC may conduct inquiries to monitor and address PCBU compliance with the positive duty and provide recommendations to remedy the non-compliance. Broadly, the AHRC may issue compliance notices compelling the PCBU to take or refrain from taking specific action, up to and including enforcement of these measures.

Prohibition on conduct that subjects a person to a hostile workplace environment on the ground of sex

The new amendments to the SD Act also make it unlawful for a person to subject another person to a workplace environment that is hostile on the ground of sex.

The key difference between a hostile work environment and sexual harassment or bullying is that the conduct is not targeted at a particular person, but rather, creates a generally hostile environment that is offensive, intimidating or humiliating for people of one sex.

The seriousness of the conduct, whether it was continuous or repetitive, and the role, influence or authority of the person engaging in the conduct are important considerations in arriving at a determination.

Cost protections

Prior to the Respect At Work Act 2022, the general process that Courts follow is to award costs after the event, which means the unsuccessful party would be required to pay the costs of the successful party. The amendment recognises the merit to the 'cost neutrality' approach which provides that each party bears their own costs in making or responding to an application.

This amendment is designed to provide applicants with the confidence that they would not be ordered to pay the costs of the other party, so long as they conduct themselves reasonably. The approach still allows courts to retain a discretion to make other costs orders where appropriate and just.

Amendments to the WGE Act

The WGE Act was also specifically amended to bring the Commonwealth public sector into line with the private sector in relation to its reporting requirements. Commonwealth public sector organisations must now report annually to the Workplace Gender Equality Agency on six gender equality indicators.

Take Home Messages

These new legislative changes are a significant enhancement of employers’ obligations and increase in the powers of the AHRC to achieve compliance. With the 2022 festive season fast approaching, these reforms serve as a timely reminder for employees and PCBUs to be particularly mindful and proactive in taking steps to prevent incidents of sexual harassments at workplace functions.

The majority of these amendments will take effect the day after the Respect at Work Act 2022 receives Royal Assent, however, the positive duty to eliminate sex discrimination will not be enforceable until 12 months later. Nevertheless, employers and PCBUs should act now to ensure compliance with the new legislation when the proposed changes come into force. It is unlikely that the steps historically taken and relied on by employers to date, such as annual training for all staff and workplace policies, are going to be sufficient to meet these new standards.

Our experienced team can assist you in numerous ways to meet your obligations, from reviewing your current policies and procedures, and providing tailored training programs to your employees. Please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Lincoln Smith on + 61 8 8210 1203 or lsmith@normans.com.au, or Anastasia Gravas on + 61 8 8210 1331 or agravas@normans.com.au should you wish to discuss any aspect of the above.