Parliament has recently passed new legislation, bringing into law seven recommendations from Sex Discrimination Commissioner Kate Jenkins Respect@Work report.
The Anti-Discrimination and Human Rights Amendment (Respect@Work) Bill 2022 implements seven of the 55 recommendations of the Respect@Work Report, primarily through amendments to the Sex Discrimination Act 1984 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
Addressing hostile workplace environments
The original Respect@Work report recommended that the Sex Discrimination Act “expressly prohibit creating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex” (recommendation 16(c)).
To address hostile work environments, the Anti-Discrimination and Human Rights Amendment (Respect@Work) Bill 2022, Schedule 1, makes amendments to the Sex Discrimination Act 1984.
The amendments outline that a workplace environment may be offensive, intimidating or humiliating to a person by reason of:
(a) the sex of the person; or
(b) a characteristic that appertains generally to persons of the sex of the person; or
(c) a characteristic that is generally imputed to persons of the sex of the person;
if it is offensive, intimidating or humiliating by reason of 2 or more matters that include the sex or the characteristic, whether or not the sex or the characteristic is the dominant or substantial reason.
The amendment also expresses that it is “unlawful for a person to subject another person to a workplace environment that is hostile on the ground of sex” and that offensive conduct could be made orally or in writing.
Positive duty on employers to eliminate unlawful sexual discrimination
The Anti-Discrimination and Human Rights Amendment (Respect@Work) Bill 2022 also introduces a positive duty on all employers and persons conducting a business or undertaking to take “reasonable and proportionate measures” to eliminate, as far as possible, certain discriminatory conduct.
This would require measures be taken to prevent this conduct being engaged in by duty holders themselves, as well as their employees, workers and agents, and third parties, where applicable. This may involve implementing policies and procedures, collecting and monitoring data, providing appropriate support to workers and employees, and delivering training and education on a regular basis.
This was one of the key recommendations from the report, which makes it clear that when deciding if a business has taken the steps the following should be considered:
- the nature and size of the business or operations
- business resources
- business operational priorities
- the practicability and costs of the measure, and
- any other relevant facts or circumstances.
Enforcement of the positive duty
The Bill has also, in line with recommendation 18, given the Australian Human Rights Commission (AHRC) the ability to monitor and assess compliance with the positive duty obligations. This enforcement mechanism will lessen the burden on individuals, allowing the AHRC to initiate action on unlawful discrimination.
Employers have 12 months before the enforcement powers kick in, giving them enough time to understand what the changes mean and introduce any organisational changes.
Systemic inquiries into unlawful discrimination
Implementing Recommendation 19 of the Respect@Work report provides the AHRC with a broad inquiry function to inquire into systemic unlawful discrimination, including sexual harassment.
“The bill would enable the commission to perform its systemic inquiry functions when requested to do so by the minister or when the commission considers it to be appropriate to do so,” the explanatory memorandum says.
“This would allow the commission to commence an inquiry on its own motion, such as where an organisation has requested it do so or it has become aware of issues relating to an organisation or sector.”
Prior to the legislation, representative bodies (like unions) could initiate a complaint in the AHRC on behalf of one or more persons. However, they could not make an application to the federal courts on behalf of the group if the matter was not resolved by the Commission.
Recommendation 23 of the report was to allow unions and other representative groups to bring representative claims to court. This was implemented by an amendment to Australian Human Rights Commission Act 1986, enabling representative bodies to make representative applications on behalf of people who have experienced unlawful discrimination in the federal courts.
While everything else is set in stone, the matter of legal costs is still up in the air. The issue has been referred to the Attorney-General’s Department to be reviewed.
Reporting workplace gender equality
Amendments to the Workplace Gender Equality Act bring the public service in line with private enterprise, requiring them to report to the Workplace Gender Equality Agency (WGEA).
It means public sector agencies will have to report annually on six key indicators:
- Gender composition of the workforce
- Gender composition of governing bodies
- Equal pay between men and women
- How available and used flexible working arrangements are to support employees with family or caring responsibilities
- Consultation with employees about issues around gender equality in the workplace
- Sex-based harassment and discrimination
There are some other tweaks to a number of Acts to address other parts of the report.
These include clarifying that victimising conduct can be the basis of a civil complaint as well as a criminal offence. The changes also extended the timeline for complaints to two years after an alleged incident from the current six months.
The Bill text and explanatory memorandum can be found here.
Sources: Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. Supplementary Explanatory Memorandum, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. Revised Explanatory Memorandum, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (as read a third time), Consultation Paper: Respect@Work – Options to progress further legislative recommendations