Yesterday, the Government announced the passage of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (‘the Bill’) into Parliament. The Bill amends the Commonwealth workplace anti-discrimination and sexual harassment framework to implement a further seven recommendations from the Sex Discrimination Commissioner’s Respect@Work: National Inquiry into Sexual Harassment in the Workplace (2020) (‘the Report’) that the previous Government did not adopt.

In this article, we’ve recapped the amendments to the Bill and the significant impact it will have on all businesses now that this law has been adopted.

What is a hostile workplace environment?

The Sex Discrimination Act 1984 (Cth) (‘Sex Discrimination Act’) has been amended to prohibit conduct that subjects another person to a workplace environment that is hostile on the grounds of sex. The use of the terms ‘person’ and ‘second person’ in the wording of the Bill means that this provision will broadly cover any conduct that occurs in the workplace, including by clients and contractors.

Sexual harassment may occur where a workplace environment is sexually charged or hostile, creating a feeling of unwelcome or exclusion by a person, even if the specific conduct is not directed at a particular person. This kind of environment can increase the risk of other forms of unlawful discrimination, such as sexual harassment. The protection will not require the conduct is directed at a specific person, but instead prohibits conduct that results in an offensive, intimidating and humiliating environment for people of one sex. The test here is whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct being offensive, intimidating or humiliating to a person of the sex of the second person by reason of their sex or characteristics to do with their sex.

Keep an eye out for features including general sexual banter, innuendo or offensive jokes, the display of obscene/pornographic materials, or even petty nuisance phone calls that may be creating a hostile workplace environment for either sex, even when not necessarily sexual in nature.

The Bill’s introduction of an express prohibition to protect people from hostile workplace environments will mean that businesses will now be required to stamp out any behaviours in the workplace which has the potential to result in an offensive, intimidating and humiliating environment for people of one sex.

What does the positive duty to eliminate sex discrimination involve?

The remaining recommendations from the Report that had yet to be implemented were mainly concerned with a shift in focus from a complaints-based model to a proactive approach to preventing sexual harassment and discrimination in the workplace. Rather than addressing and responding to conduct that has already occurred, prevention now calls for a positive duty for all businesses to take ‘reasonable and proportionate measures’ to eliminate sex discrimination, including sexual harassment, as far as possible.

These specified forms of unlawful conduct include sex discrimination, sexual and sex-based harassment, victimisation and the new ‘hostile workplace environment’ conduct outlined above. This applies where the conduct is engaged in by the duty holder themselves, their employees, workers and agents, and even third parties in certain cases.

The content of this duty and the meaning of ‘reasonable and proportionate measures’ are adaptable, and will vary depending on the size, nature and circumstance of your business, financial and non-financial resources, and the practicability and costs associated with any steps. Some possible examples include:

• Implementing policies and procedures (though this alone will not be enough).
• Collecting and monitoring data (large to medium-sized businesses should conduct staff surveys).
• Providing appropriate support to workers and employees.
• Delivering training and education around the unlawful conduct on a regular basis.

Now that these laws have come into play, it’s a good idea that businesses assess the risk in the workplace, put a prevention plan in place and communicate any changes.

Taking all reasonable and appropriate measures to prevent unlawful conduct will operate to exclude employers from vicarious liability for unlawful acts done by their employees or agents under s106 of the Sex Discrimination Act, as well as model WHS laws. However, there are other levels of enforcement to be found in the Bill.

How will claims of failure to meet these obligations be enforced?

Australian Human Rights Commission powers

New provisions added in the Bill enable the Australian Human Rights Commission (‘the AHRC’) to monitor and assess compliance with the positive duty. This is considered the main enforcement mechanism under the new framework.

The AHRC will be able to initiate action to address unlawful discrimination, rather than relying on individuals making complaints, where it ‘reasonably suspects’ non-compliance. This can be based on information or advice provided by other agencies or regulators, impacted individuals or even media reporting. The AHRC will be able to:

• Prepare and publish other guidelines for complying with the positive duty and promote understanding and public discussion of the positive duty.
• Conduct inquiries into a person’s compliance with the positive duty and provide recommendations to achieve compliance.
• Give a compliance notice specifying the action that a person must take, or refrain from taking, to address their non-compliance.
• Apply to the Federal Courts for an order to direct compliance with the compliance notice.

Businesses can seek reconsideration of a compliance notice or apply to the Federal Courts for a review. The Government has included a delayed commencement for the AHRC’s new monitoring and assessment powers, meaning that businesses have 12 months after Royal Assent to prepare themselves.

Court proceedings

Representative bodies such as unions are able to initiate representative complaints (a complaint made on behalf of a group of people who have experienced unlawful discrimination) in the AHRC. However, representative bodies traditionally were unable to make an application to the Federal Court if the matter has been terminated by the AHRC. However, now, a representative body is able to make an application to the Federal Courts in circumstances where the complaint has been terminated by the AHRC.

The Bill has also introduced a ‘cost neutrality’ approach that provides the default position on costs in the Federal Courts. Each party will bear their own costs in an unlawful discrimination proceeding, while courts retain discretion to depart from this when considered just. The risk of paying the other party’s costs ordinarily acts as a disincentive to applicants considering sexual harassment proceedings. This is intended to encourage more willingness and a higher occurrence of claims brought in Federal Courts, though this will remain to be seen.

If this information has raised any further questions, or you have another matter you need advice on, please reach out to the team at FCB for a confidential discussion. You can call us on 02 9922 5188 or email us at info@fcbgroup.com.au .