Following a number of announcements, on Tuesday 27 September 2022 the Federal Government introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth) into Parliament. The Bill’s aim is to take proactive steps to address sexual harassment, discrimination and victimisation in Australian workplaces, by continuing to implement recommendations from the Sex Discrimination Commissioner’s Respect@Work Report in 2020.
The Bill implements 7 of the recommendations of the Report, with the aim of strengthening the legal and regulatory frameworks in Australia relating to sexual harassment.
The introduction of Bill introduces a ‘positive duty’ on employers to prevent sexual harassment in the workplace.
With one in three people claiming sexual harassment at work in the past 5 years (2018 Human Rights Commission survey), this Bill is an opportunity to implement change within your work area and proactively address sexual harassment and sexual discrimination, to provide a safe working environment.
Historically, the onus has been on the individual to submit complaints about sexual discrimination and harassment, however under the new legislation, it is up to employers to ensure that they are proactively addressing “hostile work environments”.
What is a hostile work environment?
A hostile work environment is one where employees, or indeed any one employee, may feel uncomfortable on the basis of their sex or gender. Sexual banter and innuendo, offensive jokes (no matter who they’re directed at), calendars, and materials that encourage sexual comments or discriminatory conversation can all be contributing factors to a hostile work environment. Sexual harassment of a more direct nature, such as unwanted invitations for dates, suggestive comments, staring and unnecessary familiarity, are no longer the baseline for a claim of sexual harassment.
It is also important to note that the new Bill removes the requirement for the demeaning nature of discrimination or harassment to be ‘serious’, as this was previously a barrier to reporting.
The Bill follows recommendation 17 of the Respect@Work report (2020), which places the responsibility to take reasonable measures to eliminate sex-based discrimination, sexual harassment, and victimisation onto the employer. It also allows increased powers of the Australian Human Rights Commission to ‘assess and enforce’ compliance.
What are the new powers of the Australian Human Rights Commission?
The new powers of the Australian Human Rights Commission may prompt employers to purposefully set out to improve their employees’ understanding of what constitutes sexual harassment and sexual discrimination, to reduce inappropriate behaviour at work.
This includes the capacity to:
- conduct compliance enquiries and provide recommendations;
- give compliance notices, requiring specific actions, to employers that are not meeting their obligations;
- apply to federal courts for orders to direct compliance; and
- enter into enforceable undertakings.
The focus of these powers is working collaboratively with employers, however the Commission would also have a broad inquiry function to look into suspected systemic unlawful discrimination.
For now, the Bill is expected to be referred to a Senate Committee for inquiry, however employers may want to begin looking at their work environments and speaking with staff, to consider where they might benefit from future efforts to offer a fair work environment.
What can businesses do now?
The Respect@Work report (2020) makes suggestions on areas for employers to prevent and respond to sexual harassment in the workplace. Our suggestions below are based on these areas.
Leadership and culture – Strong leadership, which displays respect and inclusivity, will reduce the risk of sexual harassment occurring. While sexual harassment is prevalent across all industries, some industries may be more at risk, particularly male dominated industries, those with a traditional power imbalance, and remote workplaces. It is important to constantly assess workplace culture, in addition to allocating written resources and training. The proposed legislation targets hostile work environment and systemic discrimination.
Knowledge, risk assessment, and transparency – It is important to ensure that, like any other health and safety issue, the risk of sexual harassment is assessed on an ongoing basis. This means that employers should keep up to date with preventative measures and learn from their own and other employers’ mistakes. The Australian Human Rights Commission has increased powers to both assist with and investigate sexual harassment matters. It is proposed that there will be a 12-month delay in implementing the positive duty provision, to allow those affected by the changes to increase their understanding and implement change.
Support to victims and reporting – Most victims of sexual harassment in the workplace do not report the issue. It is crucial that employers create a supportive environment which prioritises the victim’s wellbeing and encourages victims to come forward. This not only assists victims but may reduce any economic or reputational costs to the employer. It is important that employers review their complaints and reporting systems to ensure that it encourages and supports victims of harassment.
Policies and compliance – Employers should ensure that they not only have suitable policies and procedures in place, but that training is provided on those policies and compliance is consistently enforced at all levels of their organisation.
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