Further Respect at Work reforms on the horizon

Key takeaways

• The Commonwealth Government has introduced a Bill to parliament, which proposes to implement outstanding recommendations from the Australian Human Right Commission’s landmark Respect@Work report into sexual harassment in Australian workplaces.
• If enacted, the legislation would introduce a positive duty on businesses to take reasonable and proportionate measures to eliminate, as far as possible, workplace sex discrimination, harassment and victimisation. This is a significant legal obligation.
• The positive duty would require a proactive and systemic approach to eliminating unlawful sex discrimination and sexual harassment at work. Now is the time for businesses to assess the steps they currently take to comply with their obligations and best practice in preventing sexual harassment at work.

The Commonwealth Government has introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth) (Bill) to parliament which, if made into law, would introduce a positive duty on employers and persons conducting a business or undertaking (PCBU)to take reasonable and proportionate measures to eliminate, as far as possible,workplace sex discrimination, harassment and victimisation.

The Bill implements outstanding recommendations from the ground-breaking Respect@Work Report, which advocated for the introduction of the positive duty. The Victorian Equal Opportunity Act 2010 already contains a similar positive duty that operates at the State level.

As to the content of the positive duty, the “reasonable and proportionate measures” that a duty holder would be required to take are not defined and will vary between the particular circumstances of the relevant business. The size, nature and circumstances of the business, its resources (whether financial or otherwise), and the practicability and costs associated with steps it may take will be relevant considerations in determining whether particular measures are reasonable and proportionate.

Proposed changes

Broadly, it is clear that the Bill anticipates that employers and PCBUs would need to proactively consider their compliance with the positive duty and any measures that would be appropriate to achieve compliance for their organisation in their particular circumstances, which may include, for example:                                                                                     

• taking positive steps to identify and understand potential areas of non-compliance in their organisation;
• developing a strategy for meeting and maintaining compliance; and
• reviewing and improving compliance, where appropriate.

It is also evident that the case law on the related concept of employers taking “all reasonable steps” to prevent unlawful sex discrimination, including sexual harassment, under section 106(2) of the Sex Discrimination Act 1984 (Cth) may inform the content of the positive duty.

In summary

At a minimum, the case law on that provision requires an employer to promulgate a workplace policy dealing with unlawful sex discrimination and sexual harassment and train employees on such a policy (including by requiring employees to undergo regular ‘refresher’ training) and take an active approach to dealing with complaints of sexual harassment in the workplace.

Employers may want to consider staying abreast of developments in this space as the Bill proceeds through parliament.

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