From the introduction of a positive duty obligation to lowered thresholds to determine what constitutes sex-based harassment. Here’s what HR needs to know about the recently passed Respect at Work Bill.

On Monday, 28 November 2022, Parliament passed the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (“Bill”), this being one aspect of the Australian Labor Party’s pre-election industrial relations platform. 

Here’s what HR needs to know.

History of Respect at Work Bill

To understand this Bill, it’s first important to understand the history of its development. 

The Bill stems from the work of soon-to-be former Sex Discrimination Commissioner Kate Jenkins in the Respect@Work report (“Jenkins Report”). A significant context for Jenkins’ report was that the Australian Human Rights Commission found that 33 per cent of people (including 39 per cent of women) who had been in the workforce in the previous five years had experienced workplace sexual harassment. 

There were 55 recommendations in the Jenkins Report, which covered a range of issues, such as research, keeping data, prevention initiatives and workplace changes. There were 12 recommendations specifically for legislative reform. 

While the Jenkins Report was delivered to the Morrison government in late 2019 and released to the public in March 2020, little was initially done to progress its recommendations. This changed in February 2021 when Brittany Higgins made public allegations that she had been sexually assaulted inside Parliament House, followed by the historical sexual assault allegations made about MP Christian Porter. 

Shortly afterwards, the government accepted most of the 55 recommendations. 

The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (“2021 Act”) addressed six of the Respect at work legislative reform recommendations. Some of these changes were quite positive for access to justice, such as extending the time limit for complaints under the Sex Discrimination Act from 6 months to 24 months.

 A few changes, such as making clear that sexual harassment is a valid reason for dismissal, seemed to just confirm matters that were already confirmed by a significant body of case law. There was some criticism of the 2021 Act because it did not go far enough and was a missed opportunity, specifically to prevent sexual harassment in the workplace via a positive duty. 

Passing the Respect at Work Bill

The Labor Party, as part of its 2022 Federal Election campaign, committed to implementing all 55 recommendations of the Jenkins Report, including the remaining legislative recommendations.

The Bill went through the House and Senate relatively unscathed. Jacquie Lambie included an independent review of the changes after two years and the government clarified that the positive duty does not affect duties under WHS Acts, and clarified the time limit of the compliance notice power.

There was little opposition pushback, with the Deputy Leader of the Opposition in the Senate, Michaelia Cash, being quite supportive and commenting that it “builds on and continues the work that the former government had commenced” with the benefit of time for additional consideration and consultation.  

The largest change to the Bill was the deferred amendment to the costs position in the AHRC. The Bill initially included a “cost-neutrality” approach in the AHRC, where each side paid for their fees unless the court decided to impose costs, which it would be allowed to do in certain circumstances. 

Under the proposed new section 46PSA, a court would have more flexibility to award costs where it considers it appropriate. Late last week the government removed the cost provisions of the Bill after concerns were raised about this approach deterring victims from applying to the AHRC. Instead, the government has referred the issue to the attorney-general’s department to be reviewed. 

Major changes to understand

The major legislative changes in the now-passed Bill are:

• Section 47C of the SD Act – Positive Duty to eliminate harassment, hostile work environments and victimisation
• 35B of the AHRC Act – Compliance Powers of the AHRC re Positive Duty
• 35L of the AHRC Act – Inquiry Function of the AHRC re systematic unlawful discrimination
• 28M of the SD Act –  New Cause of Action – Hostile Workplace Environment on the Ground of Sex
• 28AA(1)(a) of the SD Act – Amended Contravention – Sex Based Harassment
• 46PO(2) of the AHRC Act – Class Actions
• 46PH of the AHRC Act – Extension of Time

Here is what each point means in more detail:

Positive Duty

The Bill introduces a positive duty for employers to take “reasonable and proportionate” measures to eliminate sexual harassment, harassment on the grounds of sex, hostile workplace environments and victimisation, as far as possible.

The Explanatory Memorandum makes clear that the meaning of “reasonable and proportionate” will vary depending on the particular circumstances. The matters to be considered when determining whether the duty holder is complying with the positive duty include:

• The size, nature and circumstances of the business or undertaking
• The duty holder’s resources, whether financial or otherwise
• The practicability and costs associated with the steps.

These considerations would ensure that the positive duty is adaptable and can be applied by all employers and persons conducting a business or undertaking (PCBUs).

The preventative nature of this section mirrors the primary work, health and safety duty – that businesses must take all practicable steps to ensure the health and safety of workers. 

The Explanatory Memorandum states that these practical measures can include things such as implementing policies, collecting and monitoring data, and providing training and support to employees.

If eliminating the risk of sexual harassment is not practical, a PCBU must minimise the risk so far as reasonably practical. Employers may also be vicariously liable under the Sex Discrimination Act if they do not take “all reasonable steps” to prevent the conduct.

Granting powers to the AHRC to enforce compliance with the positive duty 

The AHRC Act will be accordingly amended to give the Australian Human Rights Commission new powers to ensure a PCBU is complying with the positive duty. Specifically, these new powers allow the AHRC to:

1. Conduct an inquiry into a person’s compliance with the positive duty, where the AHRC “reasonably suspects” non-compliance, and provide recommendations to the business specifying the action a business must take, or not take, to achieve compliance.
2. Issue a compliance notice specifying the action that a person must take, or refrain from taking, to address their non-compliance
3. Apply to the federal courts for an order to direct compliance with the compliance notice.
4. Enter enforceable undertakings with those who have a positive duty. 

These powers will commence 12 months after the Bill receives royal assent. This will afford employers the opportunity to implement any necessary changes to comply with the positive duty. 

It would also enable the AHRC to prepare and publish guidance materials on the positive duty and establish its new compliance functions.

Powers granted to the AHRC to inquire into systemic unlawful discrimination 

The Jenkins Report found “there are significant cultural and systemic factors that drive sexual harassment in the workplace, and that addressing these drivers can be challenging”. 

The Bill defines ‘systemic unlawful discrimination’ as unlawful discrimination that “affects a class or group of persons” and “is continuous, repetitive or forms a pattern”. 

The Bill gives the AHRC the power to inquire into any matter that may relate to systemic unlawful discrimination or suspected systemic unlawful discrimination, including conduct within individual businesses or across a broader industry or sector. 

The AHRC will be able to commence such inquiries on its own initiative or at the request of the Minister and then they may report to the Minister or publish a report in relation to the inquiry (or both), and make recommendations to address the issues identified.

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New contravention – hostile work environment

The Bill proposes to introduce a new cause of action in the Sexual Discrimination Act, making it unlawful for a person to subject another person to a workplace environment that is hostile on the grounds of sex.

The Bill provides that a workplace environment is “hostile on the grounds of sex” if a reasonable person having regard to all the circumstances would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the sex of the relevant individual or with someone with characteristics that generally appertain or are imputed to persons of their sex.

The provision does not require the conduct to be directed towards a particular person and is intended to capture sexually charged or hostile work environments. The factors which will be considered when determining whether the conduct is unlawful include:

• The seriousness of the conduct
• Whether the conduct was continuous or repetitive
• The role, influence or authority of the person engaging in the conduct; and
• Any other relevant circumstances.

The Explanatory Memorandum gives several examples, explaining that “conduct such as displaying obscene or pornographic materials, general sexual banter, or innuendo and offensive jokes can result in people of one sex feeling unwelcome or excluded by the general environment. The existence of these environments can increase the risk of people experiencing other forms of unlawful discrimination, such as sexual harassment.”

Amended Contravention – sex-based harassment

The Bill also lowers the threshold for the existing prohibition on sex-based harassment that was introduced in the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.

The previous threshold for sex-based harassment was “unwelcome conduct of a seriously demeaning nature”. 

The Bill removes the word ‘seriously’ to lower the threshold. The Explanatory Memorandum notes, “this would ensure that the provision does not impose an unnecessarily high threshold on applicants”.

Class actions for unlawful discrimination

Previously if a representative body such as a union made a claim on behalf of a group to the AHRC but the claim wasn’t resolved, the union couldn’t progress that claim to the federal court. The Act allows such class actions to be brought by a representative body in the Federal Court, intending to be a more accessible mechanism for anti-discrimination class actions. 

The Explanatory Memorandum, at paragraph 320, provides an example of a representative action, describing a scenario where an employment advocacy centre brings a representative action on behalf of four women within an organisation who have been demoted on their return from parental leave.

The Bill specifies that a representative application needs the written consent of each person on whose behalf the application is made. If a representative application is made, any class member will have the ability to opt out of the proceeding. 

Those class members cannot make a separate application in relation to the same claim unless they have opted out and proceedings commenced by a representative action cannot be settled or discontinued without court approval.

Extension of the time limit for commencing a complaint

The Bill also amends the AHRC Act with the effect that the time limit for a complaint under the Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth) and Racial Discrimination 1975 (Cth) would be extended from six months to 24 months after the alleged acts, omissions or practices took place, consistent with the effect of the existing provisions on the timeframes for making complaints under the Sex Discrimination Act.

In light of the seven changes above, employers should ensure staff are trained on the impending changes and audit their workplaces against the new obligations, including ensuring work cultures are not hostile and that they have systems and processes in place to satisfy the obligations under the new positive duty. 

The advice in this article is general in nature and does not constitute legal advice.

Amy Zhang is a Team Leader and Special Counsel and Zeb Holmes is a Senior Associate at Harmers Workplace Lawyers.