The Federal Government has today introduced a bill to implement a further seven of the recommendations of the Respect@Work Report (see here) (Bill), as well as making a number of other changes. These changes are proposed with the aim of ensuring safer, more respectful and more equitable workplaces in Australia. We would expect the changes proposed by the Bill to be made into law with little to no amendment.
The Respect@Work Report was released on 5 March 2020 and included 55 recommendations focused on preventing and addressing sexual harassment in workplaces (see our alert here).
After some delay, changes were introduced by the former Federal government to the Sex Discrimination Act 1984 (Cth) (SD Act) and Fair Work Act 2009 (Cth) last year (see our alert here) to implement a limited number of those recommendations. That limited implementation, despite statements by the then Federal Government to the contrary, was the subject of criticism from advocates and others in this area.
The Bill introduces a number of further changes to strengthen the existing regulatory and legal framework in respect of sexual harassment and sex discrimination, including the key recommendation from the Respect@Work Report 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 Federal Government has also indicated that it is committed to implementing the remaining Respect@Work Report recommendations as a matter of priority.
The key changes proposed in the Bill include:
- New positive duty – there will be a new positive duty on employers and Persons Conducting a Business or Undertaking (PCBUs) to take reasonable and proportionate measures to eliminate sex discrimination, sexual and sex-based harassment, hostile work environments (see our comments below) and victimisation as far as possible. This means that employers and PCBUs will be required to proactively prevent this conduct in their workplaces in order to comply with the SD Act. This could include conduct by the PCBU themselves (such as where the employer is an individual), and also their employees, workers and agents, and in some cases third parties (such as customers).
The new duty is intended to align with the existing vicarious liability provision under the SD Act (which requires employers to have taken all reasonable steps to prevent their employees engaging in sexual harassment) and to operate concurrently with work health and safety (WHS) obligations under the model WHS laws which apply to PCBUs. In particular, the new positive duty is intended to complement the recent changes to the model WHS laws which also require that employers and PCBUs ensure as far as reasonably practicable, the physical and psychological health and safety of workers (see our recent alert here).
In this respect, it is intended that the Australian Human Rights Commission (AHRC) will engage with relevant state and territory regulators to ensure there is no duplication of efforts in this respect and to support cooperation between them.
‘Reasonable and proportionate measures’ for an employer or PCBU will vary depending on the particular circumstances. The Explanatory Memorandum to the Bill suggests that these may include (among things):- implementing policies and procedures,
- collecting and monitoring data,
- providing appropriate support to workers and employees, and
- delivering training and education on a regular basis.
- New powers to enforce compliance – the AHRC will have new powers to monitor and assess compliance with the positive duty under the SD Act. This will permit the AHRC to:
- conduct inquiries into an employer’s or PCBU’s compliance with the positive duty and provide recommendations to achieve compliance,
- issue compliance notices (which may be challenged or reviewed in the federal courts),
- apply to the Federal Court for orders to direct compliance with the compliance notice, and
- enter into enforceable undertakings.
The AHRC will also have a number of new functions to support employers and PCBUs in meeting their obligations under the SD Act, including publishing guidelines. There is, however, a grace period in respect of the AHRC’s new monitoring and compliance function with a delayed commencement date of 12 months after Royal Assent of the Bill to allow employers and PCBUs time to better understand the new duty and implement compliance changes.
- Enhanced powers to inquire into systemic unlawful discrimination – the AHRC will have powers to inquire into any matter that may relate to systemic unlawful discrimination (or suspected systemic unlawful discrimination), either when requested to do so by the Minister or when it considers it appropriate to do so.
‘Systemic unlawful discrimination’ is defined to mean unlawful discrimination that ‘affects a class or group of persons’ and is ‘continuous, repetitive or forms a pattern’. The power will not be limited to particular workplaces or employers, but can be applied across multiple businesses within a broader industry or sector, or where the AHRC suspects unlawful discrimination may be occurring. The AHRC may report to the Minister, publish a report (or both) and may make recommendations to address issues identified following any such inquiry.
- New express prohibition in respect of hostile working environments – the Bill introduces a provision into the SD Act that prohibits conduct that subjects another person to a workplace environment that is hostile on the ground of sex. The concept of a hostile work environment is not new, with the courts having previously found that conduct which is not directed at a particular person but that results in a hostile work environment can be captured by the SD Act. The changes are, however, intended to provide greater clarity and certainty in the law in this respect and assist in setting clear boundaries in the workplace on acceptable conduct. This new protection prohibits conduct that results in an offensive, intimidating and humiliating environment for people of one sex.
- Threshold for sex-based harassment lowered – the word ‘seriously’ will be removed from the current definition of sex-based harassment under the SD Act, meaning that the conduct in question will not need to be ‘seriously demeaning’ (as is currently the case and which represents a high threshold) to constitute ‘harassment on the grounds of sex’.
- Introduction of cost protections – it is proposed that each party will bear their own costs in an unlawful discrimination proceeding as a default position, although the courts will retain discretion to depart from this position where they consider it just. This change to the default position has been proposed to remove the risk of adverse cost orders acting as a disincentive to applicants pursuing sexual harassment matters. To depart from this position, the courts will need to have regard to certain factors, including the financial circumstances of each party, and whether any party has been wholly unsuccessful in the proceeding. This approach differs from the approach recommended under the Respect@Work Report, which suggested the inclusion of cost provisions similar to those contained in the Fair Work Act 2009 (Cth).
- Aligning public sector reporting to WGEA for Commonwealth agencies – Commonwealth public sector agencies will be required to report annually on gender equality indicators to the Workplace Gender Equality Agency, to align with private sector reporting requirements.
- Removal of certain procedural barriers for representatives - representative bodies (such as unions) that lodge a complaint on behalf of affected persons in the AHRC, will be able to take that forward and make an application to the Federal Court if the complaint is not resolved and terminated by the AHRC. There is currently no process which allows representative bodies to take that step.
- Victimisation – the Bill clarifies that victimising conduct can form the basis of a civil action for unlawful discrimination and a criminal complaint under the Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth) and Race Discrimination Act 1975 (Cth). The SD Act was already amended in this respect last year.
- Timeframes for making a complaint – in line with changes made to the SD Act last year, the Bill will also change the timeframe under the Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth) and Race Discrimination Act 1975 (Cth) so that a complaint may only be terminated by the AHRC if it is made more than 24 months after the alleged unlawful conduct took place (which is longer than the current 6 months). There is still discretion for the AHRC to accept a complaint beyond this timeframe.
We will keep you updated in respect of any further developments.
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