The Bill seeks to implement several recommendations proposed by the Sex Discrimination Commissioner Kate Jenkins in her Respect@Work Report, which was released in early 2020 following the National Inquiry into Sexual Harassment in Australian Workplaces.
Key Changes for Employers
Of particular relevance to employers is the proposed new “positive duty” on employers under the Sex Discrimination Act 1984 (Cth) to take reasonable and proportionate measures to eliminate sexual discrimination, sexual harassment, and victimisation, as far as is possible.
This proposal reflects a clear shift from the current reactive and “complaints based” approach to preventing sexual misconduct, towards a more proactive approach, with the intention of preventing such misconduct before it occurs. The meaning of “reasonable and proportionate measures” will depend on the size, nature, and circumstances of the employer’s business, the employer’s resources, and the practicality and costs associated with the relevant measures.
The Bill also proposes an express prohibition on conduct that subjects another person to a workplace environment that is hostile on the grounds of sex. In determining whether certain conduct contravenes this prohibition, the Bill suggests that consideration be given to, among other things, the seriousness of the conduct, whether the conduct was continuous or repetitive, and the role, influence, or authority of the person engaging in the conduct.
Other notable changes include empowering the Australian Human Rights Commission to:
- prepare guidelines regarding how businesses can comply with their positive duty to prevent sexual misconduct;
- inquire into whether an employer is complying with this positive duty if it reasonably suspects that they are not;
- give compliance notices specifying the action that an employer must take, or refrain from taking, to address their non-compliance with this positive duty;
- apply to the federal courts for orders enforcing a compliance notice; and
- inquire into any matter that may relate to actual or suspected systematic unlawful discrimination.
Next Steps
It is expected that the Bill will pass both houses of Parliament later this year. Employers should begin to prepare for this now by:
- undertaking a risk assessment of sexual misconduct in their workplace and the “reasonable and appropriate” measures available to mitigate against these risks;
- updating their work health and safety registers to include these sexual misconduct risks;
- providing regular training to employees on the topic of sexual misconduct; and
- implementing and/or revising their workplace harassment, discrimination and bullying policies as well as their grievance policies.
Readers should watch this space as to the progress of the Bill through Parliament.
Addisons’ employment team can help employers understand and comply with their obligations with respect to unlawful discrimination, harassment, and sexual misconduct in the workplace.