Respect@work reforms required to be implemented by employers in 2023

On 12 December 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 received royal assent. The Act implements the remaining seven recommendations for legislative reform to address sexual harassment in the workplace made by the Sex Discrimination Commissioner, Kate Jenkins, in the Respect@Work Report published in 2020. This follows the six recommendations that were implemented by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, as set out in our previous newsletter.

Implications for Employers

Employers will need to ensure they take steps to implement their new positive duty to eliminate sex discrimination in their workplaces by:

• conducting a risk assessment to identify sexual harassment risk factors;
• assessing the likelihood of sexual harassment occurring and the impact;
• developing measures to control the risks by eliminating them or minimising them as reasonably practical
• reviewing their sexual harassment policies and complaint handling processes to ensure that they comply with the new legislative changes; and
• reviewing the effectiveness of the control measures.

We have prepared a toolkit for employers which can be adapted to their specific workplaces to ensure compliance with the new legislation and we are currently offering specialised training programs to assist employers to ensure that everyone in their organisation is aware of their new obligations and the measures required to be taken by boards of directors to senior management and all other employees.

Changes to the Sex Discrimination Act 1984 (Cth)

Hostile Workplace Environment

The Act makes it unlawful for a person to subject another person to a workplace environment that is hostile on the grounds of sex. A person is considered to have subjected another person to a hostile workplace environment if a reasonable person in their position would have anticipated the possibility of the conduct being offensive, intimidating or humiliating towards the sex or characteristic of that person.

To determine whether a person has subjected another person to a hostile workplace environment, the seriousness of the conduct, nature of the conduct in relation to whether it was continuous or repetitive and the role of the person engaging in the conduct should be considered alongside any other factors that are considered to be relevant.

Positive duty to eliminate sex discrimination

The Act introduces a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful sex discrimination (Positive Duty). What is deemed to be reasonable and proportionate will depend on the size of the business, resources available and cost/practicability of the measures. The Positive Duty essentially creates a proactive obligation on employers, rather than a reactive one.This Positive Duty is also required to be implemented to discharge work health and safety obligations by employers and other persons conducting a business or undertaking under workplace health and safety legislation, along with the obligation to manage psychosocial hazards, as set out in our previous newsletter.

Changes to the Australian Human Rights Commission Act 1986 (Cth)

Powers of the Australian Human Rights Commission

The Act confers the following powers on the Australian Human Rights Commission (AHRC) to:

• inquire into systemic unlawful discrimination;
• inquire into a person’s compliance with the positive duty if the AHRC reasonably suspects the person is not complying;
• issue compliance notice to persons found not to be complying with the Positive Duty;
• commence Court action to enforce a compliance notice; and
• accept and enforce enforceable undertakings in relation to the Positive Duty.

These powers of the AHRC do not come in force until 12 months after the date of royal assent, giving employers time to implement their obligations in relation to the Positive Duty before the enforcement powers can be applied.

2023 will undoubtedly be a busy year for employers in implementing all the new Government’s employment law reforms. We take this opportunity to wish you all a relaxing holiday season (as you will need it) and to thank you all for your support this year. We look forward to working with you in 2023 to navigate the new employment law landscape.