How Proactive are you in Preventing Sexual Harassment in the Workplace?

On 27 September 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill (Bill)¹ was introduced to Federal Parliament following recommendations from the Australian Human Rights Commission (AHRC) in the Respect@Work report, published in 2020.² The report found that 39% of women, and 26% of men (a total of 33% of people) had experienced workplace sexual harassment in the five years prior to the report. The Bill imposes significant new obligations on employers, and if it is passed, will amount to the most substantial change to Australia’s discrimination and sexual harassment laws in recent history.

What you need to know

Once it is passed, the Bill will:

• require employers to take proactive steps to prevent sexual harassment, sex discrimination, victimisation and conduct that causes a hostile work environment. This includes where conduct is not directed at a particular person, but nevertheless creates a hostile environment.
• enhance the powers of the AHRC to enforce and investigate compliance, without individuals needing to make complaints.
• cause parties in anti-discrimination matters to bear their own costs by default, meaning that even if an employer is successful in defending a claim, they will be responsible for paying their own costs (unless the default position is rebutted).

The Bill is currently before the Senate Legal and Constitutional Affairs Legislation Committee, with a report back due on Thursday, 3 November 2022.

Key changes

The Bill intends to introduce several changes designed to ensure safer, more respectful and more equitable workplaces. The key amendments proposed include:

1. Introducing a new positive duty on employers to take ‘reasonable and proportionate measures to eliminate, as far as possible’ sex discrimination, sexual harassment, victimisation and conduct that causes a hostile work environment. This duty shifts the burden from individuals needing to make complaints after an incident has occurred, to employers needing to take proactive steps to prevent harassment from occurring in the first place.

In considering whether all reasonable and proportionate steps have been taken to comply with this duty, the following matters will be considered:

1. the size, nature and circumstances of the employer’s business;
2. the employer’s resources, whether financial or otherwise;
3. the practicability and the cost of steps to eliminate the conduct; and
4. any other relevant matter.

The intention of these provisions is to recognise that the steps that must be taken by a small employer will differ from those that must be taken by a large employer. Other factors, such as whether or not the employer operates in an industry that is dominated by one sex, will also be relevant in determining the steps that must be taken.

2. Providing new powers for the AHRC to enforce compliance, including by allowing the AHRC to perform investigations into compliance with the new positive duty mentioned above, as well as investigate ‘systemic unlawful discrimination.’

The AHRC will also be given powers similar to those of the Fair Work Ombudsman to issue compliance notices and enter into enforceable undertakings with employers.

These changes transform the AHRC from a reactive body, whose powers are only enlivened when a complaint has been made by an individual, to a proactive enforcement agency empowered to investigate matters and take steps without the need for an individual complainant to drive the process.

3. Expressly prohibiting conduct that subjects someone to a hostile working environment to provide greater certainty where conduct is not directed at a particular person, but nonetheless results in a hostile working environment. This may include displaying obscene or pornographic materials, general sexual banter, innuendo, and offensive jokes which result in one sex feeling unwelcome or excluded.

4. Allowing representative claims to be brought in the Federal Court on behalf of more than one person. In effect, this will facilitate proceedings being brought by more than one person against employers where it is alleged they have failed to comply with their obligations under discrimination legislation, including the new provisions in relation to an employer’s positive duty and hostile workplaces.

Previously, representative claims could be brought in the AHRC, however, if the matter was not resolved and terminated by the AHRC, there were significant procedural barriers preventing the representative body from continuing to lead the claim in the Federal Court.

This is particularly important as claims may be brought even where there is no allegation that any one individual has suffered from harassment or discrimination. It would be sufficient to claim that the employer failed to comply with its positive duty, or otherwise subjected employees to a hostile work environment.

5. Introducing default costs protections such that each party will bear their own costs in an unlawful discrimination proceeding (subject to the court’s discretion to alter this position). This change is intended to reduce the risk of costs orders being made against an applicant, which may have otherwise deterred them from pursuing a sexual harassment application.

Next steps

If the Bill is passed it will come into effect as soon as it obtains Royal Assent (other than the provisions relating to the AHCR’s enforcement powers, which will be delayed for a period of 12 months).

We recommend that employers review their policies and business practices to ensure they meet the soon to be required standards, noting that the changes closely reflect many obligations that currently exist in law.

Any review should involve:

1. Evaluating the effectiveness of current anti-discrimination and harassment policies, including considering whether they:
   
   
   1. foster a safe, equitable environment;
   2. provide adequate reporting processes and procedures; and
   3. are effectively communicated to staff, including whether they are continually accessible to staff; and
   4. are reviewed and updated, and whether any changes are communicated to staff.  
      
      
2. Considering what training, if any, is provided to employees to promote a safe and equitable work environment. Consider whether there is an opportunity to undergo additional training such as bystander intervention.
   
   
3. Analysing your current risk management framework, including whether the risks of sexual harassment or a hostile work environment have been considered, and the strategies which have been put in place to mitigate those risks.
   
   
4. Examining management’s role in promoting a safe, respectful and equitable workplace, including ensuring that management are taking proactive steps and exercising appropriate due diligence in doing so.

If you would like any more information on the Bill, or any assistance in understanding or complying with your obligations, please contact James Simpson (Partner) or Timothy Zahara (Special Counsel) from our Workplace and Employment team here.

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¹The full text of the Bill is available here.

²The full text of the Respect@Work: Sexual Harassment National Inquiry Report (2020) is available here.