Respect at Work - workplace reforms become law

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect at Work Act) together with the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act) usher in the most significant reforms to Australia’s workplace law landscape since the enactment of the Fair Work Act 2009 (Cth) (FW Act).

This article focuses on the reforms introduced by the Respect at Work Act, which tighten protections against sexual harassment and other sex-based discrimination at work.

Key Takeaways

• The Respect at Work Act passed both houses of Commonwealth Parliament on 28 November 2022 and most provisions will come into force following Royal Assent. The reforms build on existing obligations imposed on businesses under the Sex Discrimination Act 1984 (Cth) (SD Act).
• The Respect at Work Act introduces into law a number of outstanding recommendations from the landmark Respect@Work Report, including by imposing a positive duty on employers (and other persons conducting a business or undertaking) to take reasonable and proportionate measures to, as far as possible, eliminate sexual harassment.
• While there is a 12 month ‘grace period’ before the Australian Human Rights Commission (AHRC) will start exercising new enforcement powers in relation to the positive duty, businesses should be taking steps now to ensure that they are compliant with sex discrimination and sexual harassment laws.
  ‍

In our previous article, Further Respect at Work reforms on the horizon, we flagged that the Commonwealth Government intended to pass the Respect at Work Act, which implements a number of outstanding recommendations from the AHRC’s landmark Respect@Work Report. Those changes have now become law with the passing of the Respect at Work Act by both houses of Parliament on 28 November 2022.

The reforms include the introduction of positive duty on employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, unlawful sex discrimination, sexual harassment, sex-based harassment, sexually hostile workplace environments, and victimisation in connection with such prohibited conduct. In this article, we discuss what those reforms mean for you in practice.
                                                                                                      

Positive Duty

The Respect at Work Act amends the SD Act to introduce a ‘positive duty’. The positive duty requires an employer or a person conducting a business or undertaking (PCBU) to take reasonable and proportionate measures to eliminate, as far as possible, various prohibited conduct under the SD Act, including:
‍

• sexual harassment;
• harassment on the ground of sex;
• sex discrimination;
• conduct that subjects a person to a hostile workplace environment; and
• victimisation in relation to the above

This marks a significant shift away from a largely individualised complaint-based model of addressing sex discrimination and sexual harassment in the workplace, towards a proactive and preventative model. While the term ‘reasonable proportionate measures’ is undefined in the legislation, the related concept of ‘all reasonable steps’ in the SD Act will likely inform the positive duty.

Relevantly, under the SD Act, an employer will not be vicariously liable for unlawful sex discrimination or sexual harassment if the employer can establish that it took ‘all reasonable steps’ to prevent the relevant unlawful conduct. It can be expected that reasonable steps already taken by employers, such as promulgating a comprehensive appropriate workplace behaviour policy and training its employees on that policy, will go some way towards helping to discharge a duty holder’s positive duty; but it is unlikely to be enough where proactive and preventative action will be the new norm.

Significantly, the AHRC has been armed with additional enforcement powers and will be the body charged with ensuring compliance with the positive duty.

Prohibition on hostile work environments

The Respect at Work Act has also clarified that subjecting an other person to a ‘hostile workplace environment’ on the ground of sex is unlawful. The prohibition aims at prohibiting conduct arising from a workplace being sexually charged or hostile, even if the relevant conduct is not directed at a particular person. For example, the open display of pornography in the workplace may indicate a hostile working environment.

The prohibition on a hostile workplace environment under the SD Act means that it is expressly unlawful for a person (the ‘first person’) to subject another person (the ‘second person’) to a workplace environment that is hostile on the ground of sex if:
‍

• the first person engages in the relevant conduct in a workplace where either that person or the second person (or both) work;
• the second person is in the workplace at the same time or after the relevant conduct occurs; and
• a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the sex of the second person, or a characteristic that appertains generally, or is generally imputed, to persons of the sex of the second person

This is a similar formulation to the existing prohibition on sexual harassment in the SD Act. In establishing whether conduct has created a hostile workplace environment, the circumstances of the relevant conduct must be taken into account, including:
                                                                                                      

• its seriousness;
• whether it was continuous or repetitive;
• the role, influence or authority of the person engaging in the conduct; and
• any other relevant circumstance.

Broadening the AHRC's powers

The AHRC is slated to take a greater role in preventing sexual harassment in workplaces, with new enforcement powers for the AHRC coming into effect 12 months after the Respect at Work Act receives Royal Assent. The legislation broadens the AHRC’s investigative and enforcement powers to enable it to monitor, assess and enforce compliance with the positive duty. Those powers will include:
‍

• conducting inquiries;
• issuing compliance notices and applying to the Federal Court or Federal Circuit and Family Court of Australia if a notice is not complied with; and
• entering into enforceable undertakings.

The delayed introduction of the AHRC’s new enforcement powers provides duty holders with a ‘grace period’ to become accustomed to and ensure compliance with the new laws. In the meantime, the AHRC’s “sole focus [will] be on using its education and capacity building tools to assist employers to understand their obligations and achieve compliance.”[1]‍

Class actions

Another significant change is the ability to bring ‘representative actions’ (more commonly known as ‘class actions’) for unlawful discrimination and sexual harassment in the Federal Courts.

Previously, the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) enabled representative bodies (including unions) to lodge a ‘representative complaint’ to the AHRC. However, as soon as the AHRC terminated the complaint, there was no capacity for a representative claim to be brought in a court in relation to the relevant unlawful discrimination, and so it fell to an individual (as an ‘affected person’) to file their own claim.

The Respect at Work Act now makes it clear that unions and representative groups can institute representative court proceedings for SD Act claims. This has the potential to substantially shift how sexual harassment claims are litigated.

Other changes

Other changes introduced by the Respect at Work Act include:

• amending the AHRC Act to extend the time frame for AHRC complaints under all Federal anti-discrimination legislation to 24 months (and not only SD Act claims). After that period, the President of the AHRC has a discretion whether or not to terminate a complaint for being out of time;
• amending the objects of the SD Act;
• removing the requirement for conduct to be ‘seriously’ demeaning to constitute harassment on the ground of sex under the SD Act;
• providing that the Commonwealth Public Sector must also report to the Workplace Gender Equality Agency; and
• inserting express provisions into the Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth) and Racial Discrimination Act 1975 (Cth) which expressly provide that victimisation can give rise to a civil action.

Secure jobs, better pay reforms

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), which has now received Royal Assent, also introduces a series of reforms relating to workplace sexual harassment and discrimination, including;

• introducing an express prohibition on sexual harassment in connection with work which applies to all workers and prospective workers (including employees, contractors, apprentices, trainees, students, and volunteers) and extending to sexual harassment by third parties in the workplace (including clients and customers);  
• introducing provisions to allow an aggrieved person to apply to the Fair Work Commission to deal with a sexual harassment dispute via a dispute resolution framework that is similar to the existing General Protections provisions of the FW Act;  
• amending the objects of the ( FW Act ) to include the promotion of ‘job security and gender equality’;
• amending discrimination protections in the FW Act to include breastfeeding, gender identity, and inter sex status as protected attributes;
• granting powers to the Fair Work Commission to deal with disputes relating to flexible working arrangements, including through arbitration;
• introducing a prohibition on pay secrecy clauses that prevent employees from discussing their pay and renumeration; and
• clarifying that a term of an enterprise agreement will not be discriminatory where it introduces special measures to achieve equality.

What do the reforms mean for you?

The reforms introduced by the Respect at Work Act mean that employers will need to take active steps to seek to eliminate sexual harassment and other sex-based discrimination in their workplaces. Some measures which will assist to discharge an employer’s positive duty and help limit the risk of vicarious liability will include:
                                                                                                      

• reviewing your appropriate workplace behaviour policy to ensure it is consistent with the legislative changes, including the introduction of the positive duty;
• developing and implementing regular appropriate workplace behaviour training for all staff and keeping records of staff attendance at these training sessions;
• monitoring workplace culture and implementing measures to promote compliance with the law and policies;
• responding to complaints or rumours in an effective, appropriate, and timely manner, including by educating managers and supervisors that there is no such thing as an informal complaint, and of the imperative to take appropriate action to investigate concerns about workplace sexual harassment or sex-based discrimination;
• encouraging or requiring staff to report concerns about sexual harassment or sex-based discrimination to nominated contact people within the business;
• upskilling human resources managers in conducting effective workplace investigations; and
• including sexual harassment and sex-based discrimination as a standing item for board reporting.

We can help you

If you have questions or would like more specific information about how the Respect at Work Act will affect you or your business, please call us on 1800 867 113, or click here to organise a confidential discussion.

About the authors

Stephen Schoninger leads the employment and workplace law practice at Avant Law, based in Sydney. Stephen has over 18 years’ experience practising exclusively in employment, industrial relations and discrimination laws. Stephen is called on for his ability to plainly advise on and pragmatically apply legal principles to manage and resolve complex issues arising in the workplace.  Stephen advises employers and employees in the private and public sectors on all areas of workplace law and is an experienced litigator of work-related claims. Stephen also conducts workplace investigations and delivers workplace compliance training. He regularly presents seminars on topical employment and workplace law issues.

Savanna Russo is an Associate in the employment and workplace law practice at Avant Law, based in Sydney. Savanna has experience advising both employer and employee clients on all areas of employment law. She has particular experience advising businesses in a wide range of industries including allied health, banking and finance, professional services and construction. Savanna provides practical, solutions-focused advice and is known for her professional and empathetic approach.