First look: The new positive duty to eliminate sexual harassment

After much discussion since taking power earlier this year, on 27 September the Australian Labor Government tabled its proposed bill to address sexual harassment at work, including the positive duty on employers and persons conducting a business or undertaking (PCBU) to eliminate sexual harassment at work.

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect at Work Bill 2022) implements seven further recommendations from Sex Discrimination Commissioner Kate Jenkins' landmark Respect@Work Report. In this article, we discuss the proposed changes and what they will likely mean for employers.

The positive duty

The Respect at Work Bill 2022 introduces a new Part IIA into the Sex Discrimination Act 1984 (Cth) ─ a positive duty. The proposed positive duty is expressed as follows:

"an employer or a person conducting a business or undertaking must take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible"

This expression of the positive duty aligns with the recommendation in the Respect@Work Report.

Employers and PCBUs will have a positive duty to eliminate conduct that includes:

• sexual harassment (unwelcome conduct of a sexual nature)
• harassment on the ground of sex (unwelcome conduct based on the sex of the person, but not necessarily sexual in nature)
• discrimination on the ground of a person's sex (different treatment based on the sex of the person)
• conduct that subjects a person to a hostile workplace environment on the ground of sex (conduct that results in an offensive, intimidating and humiliating environment for people of one sex, but not necessarily directed at a person)
• acts of victimisation that relate to complaints, proceedings, assertions or allegations in relation to conduct in points 1 to 4 above

Employers and PCBUs will be required to move from responding to conduct that has already occurred, to proactively taking steps to prevent conduct before it occurs. The Government has flagged that proactive measures may include "implementing policies and procedures, collecting and monitoring data, providing appropriate support to workers and employees, and delivering training and education on a regular basis".

What constitutes "reasonable and proportionate measures" for an employer and PCBUs will vary depending on the size, nature and circumstances of the organisation, as well as resources, practicality and costs.

Increase of Australian Human Rights Commission powers

The Respect at Work Bill 2022 also introduces additional powers to the Australian Human Rights Commission (AHRC) to monitor and address employer compliance with the positive duty. Under the new powers, the AHRC can:

• conduct inquiries into employer/PCBU compliance with the positive duty if the AHRC reasonably suspects non-compliance, and provide recommendations to the employer/PCBU to achieve compliance
• give a compliance notice specifying actions that an employer/PCBU must take, or refrain from taking, to address their non-compliance, including the ability to apply to the federal courts for enforcement of the compliance notice
• enter into enforceable undertakings with employers/PCBUs regarding actions and compliance
• prepare and publish guidelines for complying with the positive duty, in order to work collaboratively with employers/PCBUs in promoting compliance; and
• inquire into any matter that may relate to actual or suspected systemic unlawful discrimination

The new AHRC powers are set to come into effect 12 months after the Respect at Work Bill is enacted into law, to allow employers/PCBUs sufficient time to understand and begin to comply with the positive duty.

Supplementing the 2021 changes

The changes in the Respect at Work Bill 2022 follow those made by the former Coalition Government in 2021, which implemented six of the recommendations in the Respect@Work Report, including those listed below. Read more about these changes here.

• Introducing a new prohibition of harassment on the ground of sex.
• Expanding the coverage of the Sex Discrimination Act to include "worker" and "person conducting a business or undertaking", as commonly seen in work health and safety legislation. This has the practical effect of covering people not previously included under the SD Act, such as interns, self-employed workers or volunteers.
• Expanding the coverage of the SD Act to include members of Federal Parliament, their staff and Commonwealth judicial office holders.
• Introducing new powers for the Fair Work Commission to make stop sexual harassment orders.
• Extending the timeframe to make a complaint about sexual misconduct to the AHRC from six months to two years.
• Including "sexual harassment" in the definition of serious misconduct and as a valid reason for termination of an employee for the purposes of determining an unfair dismissal claim.

What this means for employers and PCBUs

While it may see some amendments through the parliamentary process, we expect that the Respect at Work Bill 2022 largely reflects the duties and powers that will soon come into effect. We anticipate these changes to be in place by the end of 2022.

Employers and PCBUs are encouraged to take initial steps to comply with the positive duty now. These include:

• undertaking a risk assessment in respect of sexual misconduct in the workplace, on a similar basis to work health and safety risk assessments
• if any risks are identified, assessing what "reasonable and proportionate" steps can be taken, within the context of your business or organisation, and taking those steps as soon as possible
• encouraging or requiring employees to make reports if they experience, witness or hear about sexual misconduct, and to speak up about key risk areas in the business
• clearly explaining how employees can make reports and confirming that they are protected from retaliation and victimisation for doing so
• providing training, preferably face to face, about sexual misconduct and the positive duty. We recommend tailoring training to different groups, ie. leaders, human resources, managers and supervisors, and frontline employees
• reviewing and updating sexual harassment policies and grievance procedures

Please contact us or a member of Lander & Rogers' Workplace Relations & Safety team should you require further information.