The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect at Work Act) together with the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act) usher in the most significant reforms to Australia’s workplace law landscape since the enactment of the Fair Work Act 2009 (Cth) (FW Act).
This article summarises the key reforms introduced by the Respect at Work Act.
The Respect at Work Act amends the SD Act to introduce a ‘positive duty’ on an employer or a person conducting a business or undertaking (PCBU) to take reasonable and proportionate measures to eliminate, as far as possible, various prohibited conduct under the SD Act, including:
This marks a significant shift away from a largely individualised complaint-based model of addressing sex discrimination and sexual harassment in the workplace, towards a proactive and preventative model of addressing these pervasive unlawful behaviours in Australian workplaces.
An employer will not be vicariously liable for unlawful sex discrimination or sexual harassment if the employer can establish that it took‘ all reasonable steps’ to prevent the relevant unlawful conduct. It can be expected that reasonable steps already taken by employers, such as promulgating a comprehensive appropriate workplace behaviour policy and training its employees on that policy, will go some way towards helping to discharge a duty holder’s positive duty; but it is unlikely to be enough where proactive and preventative action will be the new norm.
Significantly, the AHRC has been armed with additional enforcement powers and will be the authority charged with ensuring compliance with the positive duty.
The Respect at Work Act has clarified that subjecting an other person to a ‘hostile workplace environment’ on the ground of sex is unlawful. This prohibits conduct arising from a sexually charged or hostile workplace environment, even if the relevant conduct is not directed at a particular person. For example, the open display of pornography in the workplace may indicate a hostile working environment.
In establishing whether conduct has created a hostile workplace environment, the circumstances of the relevant conduct must be considered, including its seriousness, whether it was continuous or repetitive, the role, influence or authority of the person engaging in the conduct, and any other relevant circumstance.
The AHRC will receive new investigative and enforcement powers 12 months after the Respect at Work Act receives Royal Assent. Those powers will include conducting inquiries, issuing compliance notices and applying to the Federal Courts for non-compliance with a notice, and entering into enforceable undertakings. The delayed introduction of new enforcement powers will provide practices with a grace period to become accustomed to and ensure compliance with the new laws.
Other changes introduced by the Respect at Work Act include:
The reforms introduced by the Respect at Work Act require all employers to take positive and proactive steps to seek to eliminate sexual harassment and other sex-based discrimination in their workplaces.
Some of the measures that will assist you to discharge your practice’s positive duty and reduce the risk of vicarious liability for unlawful workplace behaviour will include:
We have prepared a more detailed article about the new laws, available here for practices interested in more information about the new laws.
If you have questions or would like more specific information about how the Respect at Work Act will affect, please call us on 1800 867 113, or click here to organise a confidential discussion.
Stephen Schoninger leads the employment and workplace law practice at Avant Law, based in Sydney. Stephen has over 18 years’ experience practising exclusively in employment, industrial relations and discrimination laws. Stephen is called on for his ability to plainly advise on and pragmatically apply legal principles to manage and resolve complex issues arising in the workplace. Stephen advises employers and employees in the private and public sectors on all areas of workplace law and is an experienced litigator of work-related claims. Stephen also conducts workplace investigations and delivers workplace compliance training. He regularly presents seminars on topical employment and workplace law issues.
Savanna Russo is an Associate in the employment and workplace law practice at Avant Law, based in Sydney. Savanna has experience advising both employer and employee clients on all areas of employment law. She has particular experience advising businesses in a wide range of industries including allied health, banking and finance, professional services and construction. Savanna provides practical, solutions-focused advice and is known for her professional and empathetic approach.
Disclaimer: The information in this article does not constitutelegal advice or other professional advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of this content.The information in this article is current to 12 December 2022. © Avant Mutual Group Limited 2022
Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law Pty Limited are members of the scheme.
