The changes brought about by the Respect@Work Act are clearly designed to emphasise that all employers and persons conducting a business or undertaking (PCBU) have a responsibility to proactively ensure that their workplaces are free from unlawful sex discrimination.

While many businesses would already understand they have a responsibility to provide a workplace free from unlawful conduct such as sex discrimination – by virtue of the operation of existing work health and safety laws – the new positive duty introduced to the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) by the Respect@Work reforms reflects the finding of the Respect@Work Report that the current legal framework is too reactive and does not effectively focus on the prevention of sex discrimination and sexual harassment.

As a result, the expectation that employers will now take additional, comprehensive, proactive steps to eliminate sex discrimination and sexual harassment in the workplace is clear, and businesses who do not satisfy this obligation will be at risk.

Positive Duty

The most notable change brought about by the Respect@Work Act is the introduction of a positive duty under the Sex Discrimination Act for all PCBUs to take “reasonable and proportionate measures” to eliminate, as far as possible, certain unlawful conduct, including unlawful sex discrimination, sexual harassment, harassment on the ground of sex, hostile workplace environments and victimisation.

Matters that will be taken in to account in determining whether a duty holder has complied with this requirement will include:

• The size, nature and circumstances of the duty holder’s business or undertaking
• The duty holder’s resources, and
• The practicability and cost of steps to eliminate the unlawful conduct.

To assist with enforcement of this new positive duty, the Respect@Work Act amends the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to enable the Human Rights Commission (AHRC) to perform additional functions, beginning from mid-December 2023.

In particular, the AHRC will be empowered to inquire into an organisation’s compliance with the positive duty where it reasonably suspects non-compliance. If, as a result of such an inquiry, the AHRC finds that the person is not complying with this obligation, the AHRC may make recommendations for preventing a repetition or continuation of the failure to do so.

The AHRC will also be empowered to issue compliance notices which, amongst other things, will specify action that the organisation must take, or refrain from taking, to address its failure to comply with the positive duty. If the AHRC considers it appropriate, the notice may also specify a reasonable period within which the person must provide evidence that they have taken, or refrained from taking, the specified action.

Failure to comply with a compliance notice may lead to the AHRC applying to the Federal Court or the Federal Circuit and Family Court of Australia (Courts) for an order directing compliance with the notice and any other order that the Court considers appropriate.

Hostile Work Environments

The Respect@Work Act also introduces into the Sex Discrimination Act a prohibition on conduct that subjects another person to a workplace environment that is hostile on the ground of sex.

A workplace will be considered hostile on the ground of sex if:

• A person engages in conduct in a workplace (which includes the place where either that person or the person who is subjected to the conduct work)
• The second person is in the workplace at the same time as, or after, the conduct occurs, and
• 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 second person by reason of:
  • The sex of the person
  • A characteristic that appertains generally to persons of that sex, or
  • A characteristic that is generally imputed to persons of that sex.

A workplace environment will be considered “offensive, intimidating or humiliating” to a person if it is offensive, intimidating or humiliating by reason of two or more matters that include the sex of the person or a characteristic appertaining or imputed to persons of that sex. However, the person’s sex or a related characteristic need not be the dominant or substantial reason in order for such a finding to be made.

Systemic Unlawful Discrimination

The Respect@Work Act also inserts a new provision in the AHRC Act providing the AHRC with a broad ability to inquire into systemic unlawful discrimination or suspected systemic unlawful discrimination. Systemic unlawful discrimination is defined as unlawful discrimination that affects a class or group of persons and is continuous, repetitive or forms a pattern.

If the AHRC undertakes such an inquiry it may report on the outcomes to the relevant Minister and/or publish a report.

Representative Proceedings

The AHRC Act currently enables representative bodies, such as unions, to initiate a complaint in the AHRC on behalf of others. However, such complaints are unable to proceed to the Courts if the matter is unresolved and is terminated by the AHRC.

The Respect@Work Act brings about changes which will allow a representative body to make an application to the Courts to continue such a matter if the complaint is terminated at AHRC level.

Other Amendments

In addition to the above, the Respect@Work Act also:

• Clarifies that victimisation can form the basis of a civil action for unlawful discrimination in addition to a criminal complaint
• Amends the discretionary grounds on which a complaint made under anti-discrimination legislation can be terminated – so that a complaint under the Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth) or Race Discrimination Act 1975 (Cth) will only be able to be terminated on the ground of timing if it is made more than 24 months after the alleged unlawful conduct occurred, whereas the timeframe for such discretionary termination of complaints currently sits at six months
• Amends the objects of the Sex Discrimination Act to include a focus on achieving “substantive equality between men and women”
• Amends section 28AA of the Sex Discrimination Act, which prohibits harassment on the ground of sex, to remove the requirement that the conduct needs to be of a “seriously” demeaning nature, and
• Amends the Workplace Gender Equality Act 2012 (Cth) to require the federal public sector to now report against certain gender equality indicators to the Workplace Gender Equality Agency.

Next Steps

With the commencement of these new laws, employers (and all PCBUs) should undertake a close review of their current systems and implement appropriate measures to ensure all reasonable and proportionate steps are taken to eliminate sex discrimination as far as possible and that their workplace is a safe environment which is not hostile on the grounds of sex. This may involve:

• Reviewing policies and procedures to make sure they are aligned with the requirements of the Respect@Work Act and make it clear that sex discrimination and conduct that creates a hostile work environment is unlawful and will not be tolerated
• Updating training materials and conducting additional training sessions to ensure workers are aware of the evolving requirements of anti-discrimination legislation and how the business is ensuring a safe workplace
• Ensuring workers are aware of grievance and complaint procedures should they have concerns about sex discrimination or sexual harassment in the workplace, and aware of the support mechanisms available to them, such as Employee Assistance Programs, and
• Ensuring workplace procedures designed to respond to the changes brought about by the Respect@Work Act are aligned with the organisation’s broader safety systems, including systems in place to manage psychosocial risks and hazards in the workplace.

Further information / assistance regarding the issues raised in this article is available from the authors, Elizabeth Radley, Partner, Matthew Parker, Senior Associate, or your usual workplace contact at Moray & Agnew.