The Commonwealth Government has introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth) (Bill) to parliament which, if made into law, would introduce a positive duty on employers and persons conducting a business or undertaking (PCBU)to take reasonable and proportionate measures to eliminate, as far as possible,workplace sex discrimination, harassment and victimisation.
The Bill implements outstanding recommendations from the ground-breakingRespect@Work Report, which advocated for the introduction of the positive duty. The Victorian Equal Opportunity Act 2010 already contains a similar positive duty that operates at the State level.
As to the content of the positive duty, the “reasonable and proportionate measures” that a duty holder would be required to take are not defined and will vary between the particular circumstances of the relevant business. The size, nature and circumstances of the business, its resources (whether financial or otherwise), and the practicability and costs associated with steps it may take will be relevant considerations in determining whether particular measures are reasonable and proportionate.
Broadly, it is clear that the Bill anticipates that employers and PCBUs would need to proactively consider their compliance with the positive duty and any measures that would be appropriate to achieve compliance for their organisation in their particular circumstances, which may include, for example:
It is also evident that the case law on the related conceptof employers taking “all reasonable steps” to prevent unlawful sexdiscrimination, including sexual harassment, under section 106(2) of the SexDiscrimination Act 1984 (Cth) may inform the content of the positive duty.
At a minimum, the case law on that provision requires an employer to promulgate a workplace policy dealing with unlawful sex discrimination and sexual harassment and train employees on such a policy (including by requiring employees to undergo regular ‘refresher’ training) and take an active approach to dealing with complaints of sexual harassment in the workplace.
Employers may want to consider staying abreast of developments in this space as the Bill proceeds through parliament.
If your business would like further information about its obligations with respect to anti-discrimination and sexual harassment laws, please contact our Employment & Workplace team on 1800 867 113. Alternatively, to organise a confidential discussion with one of our lawyers at a time that suits you, click here.
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.
Disclaimer: The information in this article does not constitute legal 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 its content. The information in this article is current to 27 September 2022.
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