Recently, the newly elected Labour Government introduced the Anti-Discrimination and Human Rights Legislation Amendment Bill (Respect at Work) Bill 2022 (Cth) (Bill) into parliament. The Bill commits to implementing 55 recommendations made by the ‘Respect@Work’ report conducted by the Australian Human Rights Commission (AHRC) to drive the prevention of Sexual Harassment in workplaces. This follows a similar theme of legislation that was introduced several years ago surrounding Anti-bullying measures in the workplace.
In 2020, the Sex Discrimination Commissioner released the ‘Respect@Work’ report following the national inquiry into Sexual Harassment and Discrimination in Australian Workplaces. The call for such a report was formed off the back of high-profile cases as Brittany Higgins alleged sexual assault whilst employed in Australian Parliament in 2019, and movements such as #metoo and #timesup.
The key part of the introduced legislation for employers to be aware of is that these recommendations emphasise the importance of a ‘positive duty’ on employers to actively address issues of sexual discrimination, victimisation and harassment, rather than the predominantly complaints-based approach which has traditionally been the case.
‘Positive duty’ shifts the focus from reactionary measures in a predominantly ‘complaints-based’ system (for example: where an employee raises a grievance and then the employer then decides on the action it will take), to one where employers will be expected to take a more holistic approach to actively seek the prevention and eradication of sexual harassment and discrimination. Employers will need to devise their approach to addressing compliance with the Bill by taking into account several factors which may be a cause of the sexual harassment, such as: gender balances, workforce size, industry specific issues, culture, locations of work and any other factors that may further their exposure to risk around harassment and discrimination. Certainly, the costs associated with addressing these factors will be a key factor for employers.
The Bill is scheduled for passing into legislation later this year.
Amongst these changes, the Bill will also give the AHRC further powers to:
- Guide business compliance regarding positive duty,
- Assess any suspected non-compliance of positive duty, and;
- Compel the federal courts to enforce positive duty compliance orders where compliance has not been actioned by the employer.
Here are three practical steps you can take now to prepare:
- Review your policies – make sure your Sexual Harassment and Grievance policies are up to date and lead with a positive duty approach.
- Conduct a comprehensive Risk Assessment – This step will be critical to demonstrating that your business is compliant with the new positive duty requirement. Assess what reasonable and appropriate measures your workplace can take to reflect the proposed changes.
- Communication – Organisation leaders should be communicating the impending changes, providing their endorsement and commitment to preventing sexual harassment from occurring in their workplace.
Please talk to us if you’re concerned about how the new positive duty requirements will impact your business. We will work with you to devise a holistic strategy that ensures compliance and create a culture that seeks to reduce the risk of sexual harassment and other harmful behaviour occurring in your workplace.
Nick Hedges is the founder of Resolve HR, a Sydney-based HR consultancy specialising in providing workplace advice to managers and business owners. He recently published his first book, “Is Your Team Failing Or Kicking Goals – Take control of your people and their performance”. It is a practical Response to the most pressing HR challenges, which can be found at https://resolvehr.com.au/.
Disclaimer: The contents do not constitute legal advice and does not cater for individual circumstances. The information contained herein is not intended to be a substitute for legal advice and should not be relied upon as such.