Due to a global Microsoft outage, we are experiencing technical difficulties that may make it hard to reach us.

Respect at Work workplace reforms become law (Summary for health practices)

Stephen Schoninger, Avant Law - Partner, Head of Employment & Workplace

Savanna Russo, Avant Law - Associate, Employment & Workplace

Sunday, 11 December 2022

doctors working together

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 summarises the key reforms introduced by the Respect at Work Act.

Key takeaways

  • The Respect at Work Act introduces reforms that build on existing obligations imposed on businesses under the Sex Discrimination Act 1984 (Cth) (SD Act).
  • The Respect at Work Act significantly introduces into law 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, practices should be taking steps now to ensure that they are compliant with sex discrimination and sexual harassment laws.‍

Positive duty

The Respect at Work Act amends the SD Act to introduce a ‘positive duty’ on 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 of addressing these pervasive unlawful behaviours in Australian workplaces.

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 authority charged with ensuring compliance with the positive duty.

Prohibition on hostile workplace environments

The Respect at Work Act has clarified that subjecting an other person to a ‘hostile workplace environment’ on the ground of sex is unlawful. This prohibits conduct arising from a sexually charged or hostile workplace environment, 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.

In establishing whether conduct has created a hostile workplace environment, the circumstances of the relevant conduct must be considered, 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.

New AHRC powers

The AHRC will receive new investigative and enforcement powers 12 months after the Respect at Work Act receives Royal Assent. Those powers will include conducting inquiries, issuing compliance notices and applying to the Federal Courts for non-compliance with a notice, and entering into enforceable undertakings. The delayed introduction of new enforcement powers will provide practices with a grace period to become accustomed to and ensure compliance with the new laws.

Other Changes

Other changes introduced by the Respect at Work Act include:

  • extending the timeframe for AHRC complaints under all Federal anti-discrimination legislation to 24 months;
  • removing the requirement for conduct to be ‘seriously’ demeaning to constitute harassment on the ground of sex; and
  • inserting express provisions into other Federal anti-discrimination legislation to provide that victimisation can give rise to a civil action.

What do the reforms mean for your practice?

The reforms introduced by the Respect at Work Act require all employers to take positive and proactive steps to seek to eliminate sexual harassment and other sex-based discrimination in their workplaces.  

Some of the measures that will assist you to discharge your practice’s positive duty and reduce the risk of vicarious liability for unlawful workplace behaviour will include:

  • ensuring you have an up to date comprehensive appropriate workplace behaviour policy and associated complaint procedure in place that it is consistent with the legislative changes, including the introduction of the positive duty;
  • developing and implementing regular staff training on appropriate workplace behaviour, 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 of inappropriate behaviour in an effective, appropriate, and timely manner, including by educating relevant people managers on the imperative to take appropriate action to investigate concerns when they arise;
  • encouraging or requiring staff to report concerns to nominated contact people in the business;
  • upskilling practice managers in conducting effective workplace investigations in a confidential and appropriate manner; and
  • including sexual harassment and sex-based discrimination as a standing item for management and board reporting.

More detail

We have prepared a more detailed article about the new laws, available here for practices interested in more information about the new laws.

We can help you

If you have any questions, or would like more information about how we can assist you or your practice, please call 1800 867 113, or to organise a confidential discussion at a time that suits you, please click here 

About the authors

Stephen Schoninger Image

Stephen Schoninger is a Partner and Head of the Employment & Workplace law practice at Avant Law, based in Sydney. Stephen has over 20 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

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 small to medium 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.

Disclaimers

The information in this article does not constitutelegal advice or other professional advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of this content.The information in this article is current to 12 December 2022. © Avant Mutual Group Limited 2022

To Top