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Government to make good on missed opportunity by Coalition? Proposed legislation to implement further Respect@Work recommendations – Employee Rights/ Labour Relations



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Introduction of new Respect@Work Bill

On 27 September 2022, the Government introduced the
Anti-Discrimination and Human Rights Legislation Amendment
(Respect at Work) Bill 2022
(New Bill)
seeking to implement the remaining legislative recommendations
under the Respect@Work Report.

Background

On 29 January 2020, Kate Jenkins, the Australian Human Rights
Commission’s Sex Discrimination Commissioner, delivered
Respect@Work: Sexual Harassment National Inquiry Report.
The Report followed a comprehensive national survey of employees in
Australian workplaces and found that “Workplace sexual
harassment is prevalent and pervasive”. Significantly, the
Report advocated a new approach to preventing, and responding to,
sexual harassment.

The Report included a total of 55 recommendations, with some 12
of those expressly addressed toward legislative reform at the
Federal level.

In September 2021, the Sex Discrimination and Fair Work
(Respect at Work) Amendment Bill 2021 (Cth)
(Earlier
Bill
) – addressing six of the recommendations – was
passed.

Missed opportunity?

At the time, the Earlier Bill was criticised for what it left
out.

In particular, Recommendation 17 of the Report called for
amending the Sex Discrimination Act 1984 (Cth)
(SDA) to introduce a positive duty on all
employers to take reasonable and proportionate measures to
eliminate sex discrimination, sexual harassment and victimisation,
as far as possible.

The Report emphasised that sexual harassment needs to be viewed
through a work, health and safety prism, shifting the emphasis to
risk identification, minimisation and management. The employer
needs to be pro-active, not simply re-active.

Despite sustained attempts by the (then) opposition and the
Greens, Recommendation 17 was not included in the Earlier Bill.
Indeed, the (then) government suggested that it was unnecessary as
the positive duty already arose under work health and safety
legislation and it wished to avoid duplication.

Implementation of election promise

In campaigning during the Federal election, Labour pledged to
implement all 55 recommendations in the Report.

And it now appears it is making good.

On 27 September, the Government introduced the New Bill.
Describing the New Bill in the Explanatory Memorandum as a critical
“suite of reforms .. for ensuring safer, respectful and more
equitable workplaces in Australia”, it includes the following
proposed amendments:

  • Positive duty: the EM acknowledges both the
    existing obligations under the WHS laws, as well as the existing
    obligation under section 106 of the SDA to take all reasonable
    steps to prevent sexual harassment in order to avoid vicarious
    liability, meaning “employers should already be preventing
    discrimination and harassment by their employees or agents in order
    to manage their potential liability under the SD Act”.
    However, the EM further explains “it is intended that the
    model WHS laws and positive duty in the SDA would operate in a
    mutually reinforcing way to build safer and more respectful
    workplaces”

  • AHRC powers: the Bill proposes to amend the
    Australian Human Rights Commission Act to empower the AHRC
    to monitor and assess compliance with the positive duty. This
    recognises the Report’s finding that the AHRC should be able to
    initiate action, operating to ease the burden individuals impacted
    by sexual harassment to make and prosecute complaints

  • Hostile work environment: the Bill proposes
    amendments to the SDA to prohibit conduct that subjects another
    person to a hostile workplace environment on the ground of sex.
    This is designed to capture conduct such as such as displaying
    obscene or pornographic materials, general sexual banter, or
    innuendo and offensive jokes, which although not necessarily
    directed at a particular individual, can create a sexually charged
    or hostile environment causing one sex to feel unwelcome. The EM
    further notes the circumstances to be considered when determining
    whether the conduct is unlawful include: the seriousness of the
    conduct; whether the conduct was continuous or repetitive; the
    role, influence or authority of the person engaging in the conduct;
    and any other relevant circumstance.

  • Sex-based harassment: the Earlier Bill
    inserted 28AA into the SDA, to include new prohibition against
    harassment on ground of sex (as opposed to conduct of sexual
    nature) where on the ground of sex: the person engages in unwelcome
    conduct of a seriously demeaning nature in relation to the person
    harassed; and

  • the person does so in circumstances in which a reasonable
    person, having regard to all the circumstances, would have
    anticipated the possibility that the person harassed would be
    offended, humiliated or intimidated. The New Bill proposes to
    remove the reference to conduct of a ‘seriously’ demeaning
    nature to ensure the threshold is not unnecessarily high to make
    out a claim.

Where to from here?

There is little doubt that the New Bill will be passed into law.
As observed in the EM, given obligations under section 106 of the
SDA in order to avoid vicarious liability, employers should already
have systems, policies and processes in place for preventing and
responding to sexual harassment. However, now is a good time to
review your organisation’s approach to ensure it is not only
compliant, but reflects best practice. The McCullough Robertson Employment Relations and
Safety team
are well placed to assist you and your business in
assessing your workplace policies and complaint handling mechanisms
and can be contacted here.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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