Your guide to keeping up with Respect@Work employer obligations

Did you know that the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (the Act) means all employers now have a direct obligation to eliminate sexual harassment in the workplace? This amendment has put in place a firm set of standards that businesses cannot ignore, and as an employer, you must begin:

1. Updating your Contracts of Employment and Policies;
2. Creating a reporting culture to identify potential issues at an early stage; and
3. Implement regular training and development for all workers.

Let’s go over the legislative changes, and their impact on your business.

Respect@Work: what was recommended, why it’s now law, and what to do next

1. 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. This prohibition extends to any conduct that occurs in the workplace, including by clients and contractors.

Sexual harassment may occur where a . The protection will not require the conduct to be 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 a particular sex or because of characteristics to do with a particular sex.

What you need to do: keep an eye out for features including general sexual banter, innuendo or offensive jokes, the display of obscene or 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 Act’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 have the potential to result in an offensive, intimidating and humiliating environment for people of one sex.

2. Employers now have a ‘positive duty to eliminate sex discrimination.’ This is what is required:

As a result of the implementation of the Act, employers and persons conducting a business or undertaking (PCBU) now have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, unlawful sex discrimination, and victimisation in the workplace. This applies where the conduct is engaged in by the duty holder themselves, their employees, workers, agents, and even third parties in certain cases.

This measure sees a shift in focus from a complaints-based model to a proactive approach to preventing sexual harassment, discrimination and victimisation in the workplace.

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 unlawful conduct regularly.

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.

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

The Australian Human Rights Commission (‘AHRC’) has the power to monitor and assess compliance with the positive duty. From 12 December 2023, 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.

Court proceedings

Representative bodies such as unions can 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 can make an application to the Federal Courts in circumstances where the complaint has been terminated by the AHRC.

The Act 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.

About our author

Amanda Curatore is a qualified Solicitor at Citation Group. Amanda is highly experienced in providing workplace relations advice and assistance to clients in a wide range of matters including employment contracts, modern award interpretation, managing performance, bullying and harassment, terminations, and managing risk.