Positive duty to prevent sexual harassment coming soon

Professional woman in office

Employers around Australia are on notice that a positive duty to prevent sexual harassment is just around the corner.

In early July 2022, Federal Attorney-General the Hon Mark Dreyfus QC MP affirmed the Australian Labor Party's commitment to implement the remaining recommendations from the 2020 Respect@Work report, in an address to the Respect@Work Council. While there is still no indication on the exact timing of the further changes, Dreyfus said, "We acknowledge the real and devastating impact sexual harassment has in our workplaces and are committed to implementing all recommendations of the Respect@Work report".

Positive duty

A key recommendation within the report is the introduction of a new national positive duty on employers to actively prevent sexual harassment in the workplace. The positive duty will require employers to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination and victimisation.

The report also recommended that the Australian Human Rights Commission (AHRC) be given the power to assess and enforce compliance with the positive duty. However, what these powers will entail remains to be seen.

The ALP has previously committed to undertaking further consultation on the issue, which will also consider whether small businesses ought to be excluded from the positive duty.

Additional reforms

In addition to the positive duty, employers can expect to see a range of other reforms including:

  • Workplace sex discrimination rules: rules prohibiting employers from creating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex;
  • Investigative powers: granting new powers of inquiry to the AHRC to investigate systemic issues of sexual discrimination and harassment;
  • Empowering representative bodies: enabling representative bodies, such as unions, to bring claims to court; and
  • Costs protections: the introduction of new costs protections for people who bring claims of sexual harassment under federal human rights laws, similar to the costs protections that already exist under the Fair Work Act 2009 (Cth).

Financial investment

The Attorney-General's announcement also addressed the government's pledge to invest at least $35 million towards the implementation of the recommendations from the report for the next four years. A portion of that investment, approximately $24 million, will fund working-women's centres across Australia. Additional funding will also be given to the AHRC to assist victims of sexual harassment in the workplace.

Keep up to date

Further information about the announcement is expected to be released in coming months. Lander & Rogers will continue to monitor the situation closely.

For questions relating to any of the topics raised in the announcement, please contact Lander & Rogers' Workplace Relations & Safety team.

Learn more about preventing sexual harassment in the workplace here.

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