This week, federal Parliament made significant changes to sexual harassment laws by amending the Sex Discrimination Act 1984 (Cth) (SDA).

More change is likely to follow soon with amendments proposed to the Fair Work Act 2009 (Cth) (FWA). Employers need to take notice, and consider the action they should take in order to comply with the new laws.

Background

Following a national inquiry into sexual harassment in the workplace in 2018, the Respect@Work: Sexual Harassment National Inquiry Report (2020) made 55 recommendations for reform to reduce the prevalence of workplace sexual harassment.

This week’s Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect at Work Act) is part of the Government’s response to that report.  The Government also intends to target these issues with amendments to the FWA via its Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth) (Fair Work Amendment Bill), which we summarised, in an earlier form, in our previous blog here.  These amendments are currently the subject of debate in the Senate and are expected to be passed by Parliament no later than this Saturday.

Respect at Work Act

The most notable changes to the SDA arising out of the Respect at Work Act are:

• imposing a positive duty on employers and other duty holders to take ‘reasonable and proportionate’ measures to eliminate sexual harassment and sex discrimination in their workplaces;
• enabling the Australian Human Rights Commission (AHRC) to enforce the positive duty imposed on employers and other duty holders; and
• prohibiting employers and others from subjecting anyone to a ‘hostile workplace environment’ on the ground of sex.

Positive duty

Until now, employers’ obligations under the SDA to prevent discrimination and harassment arose from reflective ‘vicarious liability’ provisions. These make an employer vicariously liable for acts of harassment (or other unlawful discrimination) unless the employer can demonstrate that it has taken reasonable steps to prevent those acts.

However, the vicarious liability provisions are limited by their essentially remedial and reactive focus, and until now the question of whether an employer had taken reasonable steps to prevent discrimination (including harassment) would be asked only in the context of a complaint.

As the national inquiry showed, there is a range of reasons why people might be reluctant to make a complaint of sexual harassment. To target this, the Respect at Work Act places a positive duty on employers and others conducting a business or undertaking (and their workers and agents) to take ‘reasonable and proportionate’ measures to eliminate sexual harassment and other conduct that is prohibited under the SDA.

Relevant to the question of whether this positive duty has been discharged are:

• the size, nature and circumstances of the duty holder’s business or undertaking;
• the duty holder’s resources, financial or otherwise;
• the practicability and cost of steps to eliminate conduct covered; and
• any other relevant matter.

It follows that there will be an expectation – particularly on larger organisations – to implement wide-ranging and significant measures to address sexual harassment, sex discrimination and other unlawful conduct under the SDA.

AHRC powers

With a view to monitoring compliance with the new positive duty, the Respect at Work Act gives the Australian Human Rights Commission (AHRC) powers to inquire into whether a person has complied with the duty.  If the AHRC finds that a duty holder has not complied with the duty, it may issue a compliance notice, requiring the duty holder to take remedial steps.  If necessary, that notice may be enforced by the Federal Court or Federal Circuit Court.

Hostile workplace environments

The SDA now also makes it unlawful to subject another person to a workplace environment that is ‘hostile on the ground of sex’.  This will occur if:

• a person is exposed to conduct in the workplace because of the sex of the person (or a characteristic pertaining to or generally imputed to persons of that sex); and
• a reasonable person would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of that sex.

These provisions will capture some types of conduct which were not previously prohibited by sex discrimination provisions (perhaps because the person could not demonstrate detriment) or sexual harassment provisions (perhaps because the conduct was not of a sexual nature).

Additional amendments

The Respect at Work Act also:

• adds ‘substantial equality between men and women’ as a new object of the SDA;
• enables the AHRC to inquire into matters that establish systemic sex discrimination or suspected systemic sex discrimination; and
• introduces provision for cost protection for legal proceedings.

Fair Work Amendment Bill

The Fair Work Amendment Bill seeks to complement the changes made by the Respect at Work Act by broadening the extent to which the FW Act deals with sexual harassment.

Currently, the Fair Work Commission has the power to make ‘stop sexual harassment orders’ (much like its ‘stop bullying orders’) to protect workers who are sexually harassed at work.  The Fair Work Amendment Bill will amend the FW Act to expressly prohibit sexual harassment at work.

In an expansion of the current regime, a person who contravenes these provisions will be liable for civil penalties; and the employer will also be vicariously liable for sexual harassment (and penalties), unless the employer can prove that it took all reasonable steps to prevent its workers from engaging in the sexual harassment.  These vicarious liability provisions mirror those in the SDA.

In addition, the Fair Work Amendment Bill seeks to create a far broader jurisdiction for the Fair Work Commission to deal with sexual harassment disputes, including by arbitrating disputes if the parties agree.  Currently, the Commission can only make orders with a view to stopping sexual harassment occurring (without awarding compensation); but under the proposed amendments the Commission will have far broader powers to make orders, including for compensation, payment of lost wages and for acts of redress.

What does this mean for employers?

The amendments to the SDA and FWA create a higher level of accountability for employers and other duty holders in relation to sexual harassment in the workplace and require employers to show a greater degree of proactivity to manage their legal obligations.  Workers will have more avenues to seek redress where they are subject to sexual harassment.  With this in mind, now more than ever employers need to be taking steps to prevent sexual harassment from occurring in their businesses.

The AHRC’s powers to conduct inquiries into compliance with the positive duty will not commence for a further 12 months.  Employers should use this time to ensure that their measures for preventing and addressing sexual harassment in the workplace are up to date and sufficiently proactive.

Employers must review current policies and implement ‘reasonable and proportionate’ measures to prevent sexual harassment in the workplace. Measures include, but are not limited to:

• completing an internal risk assessment and taking action where there are risks of sexual misconduct – which might, for example, arise from a power imbalance or lack of diversity;
• providing tailored and up to date information and training to all staff about sexual harassment and the positive duty;
• updating sexual harassment policies; and
• providing accessible and efficient procedures for sexual harassment claims.

Failure to implement change in the workplace to prevent sexual harassment may result in a compliance notice by the AHRC or action being taken against employers under either the SDA or FWA provisions.

For further assistance, please contact our Employment, Workplace Relations and Safety team.

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