In November 2022, the Federal Parliament passed the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (‘the Bill’) which introduces several amendments to the Sex Discrimination Act 1984 (Cth) (‘SD Act’).
A summary of the amendments is included below.
Prevention focus
The amendments impose a positive duty on employers to take reasonable and proportionate measures to prevent and eliminate sexual harassment on the ground of sex, conduct creating a hostile work environment, or acts of victimisation against another person.
Conduct that subjects another person to a hostile workplace environment on the ground of sex is also now prohibited. This provision considers whether a reasonable person would anticipate the possibility that the conduct in question could result in the workplace environment being offensive, intimidating or humiliating to the person by reason of their sex.
These amendments represent a significant shift from a response or reactive-based approach to one which is more proactive and focused on prevention.
Enforcement powers
The Australian Human Rights Commission Act 1986 (Cth) ('AHRC Act') was also amended to empower the Australian Human Rights Commission (‘the AHRC’) to enforce the positive duty obligation imposed under the SD Act.
The AHRC can now:
- prepare and publish guidelines for compliance, promote understanding, and undertake research in relation to the positive duty.
- inquire into matters of systemic or suspected systemic unlawful discrimination and non-compliance with the duty.
- deal with complaints received up to 24 months after the alleged act.
Other amendments provide unions and representative groups with complaint avenues through the federal court system on behalf of the person affected by unlawful discrimination or sexual harassment.
Implementation
Employers are recommended to ensure their policies and procedures comply with the positive duty obligations under the SD Act as soon as possible.
They should consider:
- Reviewing systems to identify deficiencies in line with the SD Act.
- Ensuring policies, procedures and training reduce the likelihood of the unlawful conduct occurring.
- Updating work health and safety practices to identify and control the risks of sexual harassment and discrimination.
- Providing employees and managers with the skills to address it.
- Introducing accessible and proactive reporting and monitoring mechanisms for staff to report instances of sexual harassment and discrimination.
- Ensuring reports are taken seriously, investigated and addressed in a timely manner.
Implications on South Australian laws
Under South Australian anti-discrimination law an employer may be held vicariously liable for the discriminatory or unlawful acts of their employees. Reasonable steps to implement and enforce an appropriate policy can be used as a defence.
However, it is important to recognise that the amendments to the federal SD Act and AHRC Act apply nationally, across all sectors, including in the South Australian public service and private sector.
Useful Links
For more information please visit:
Respect@Work | Respect@Work (respectatwork.gov.au)
Passage of ‘Respect@Work’ Bill is a major step in preventing harassment (humanrights.gov.au)