New employer obligations regarding the Respect at Work Bill

On 28 November 2022, the Australian Parliament passed the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022.

This legislation significantly changes employers’ obligations when it comes to preventing sexual harassment in the workplace. The Bill introduces a positive duty for employers to take reasonable and proportionate measures to eliminate sexual harassment and harassment on the grounds of sex.

Additionally, the Australian Human Rights Commission has been given new powers to conduct inquiries into compliance with the positive duty and issue compliance notices.

This article outlines the significant changes and provides some guidance for employers to comply with the new legislation and what they should act on now.

The below article discusses sexual harassment and may be distressing to some people. if you need support, call 1800RESPECT who provides confidential counselling and support.

What ‘Positive Duty’ or specific actions must an employer undertake?

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 specific actions individual businesses need to take will vary depending on their size, nature, and circumstances. These practical measures can include things such as:

implementing policies and procedures
collecting and monitoring data
providing the appropriate support to workers and employees
delivering training and education around unlawful conduct regularly – conducting staff meetings, training new employees or providing employees with relevant resources and information.

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.

What are the new powers of the Australian Human Rights Commission (AHRC)?

The AHRC has been given new powers to:

conduct inquiries into compliance with the positive duty, and make recommendations on what should be done to meet that duty, if it reasonably suspects there is no compliance
issue compliance notices to address what must be done to meet the positive duty, and, where appropriate, apply to the courts for notices to require compliance with that notice
enter into enforceable undertakings, and
undertake inquiries into systemic or suspected unlawful discrimination, where it ‘affects a group of people and is continuous, repetitive or forms a pattern.’

What is the new contravention to sexual harassment regarding hostile work environments?

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

The test is whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct being offensive, intimidating, or humiliating to a person of the sex of the person impacted by the behavior.

Extension of the time limit for commencing a complaint

The Bill also affects the time limit for a complaint under the Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth), and Racial Discrimination 1975 (Cth), which would be extended from six months to 24 months after the alleged acts, omissions or practices took place.

Class actions for unlawful discrimination

The last significant change relates to the power of representative bodies, such as unions, to bring representative actions in the federal courts.

What should businesses do now to minimise risk?

Under model work health and safety laws, businesses and organisations must provide a safe workplace by ensuring that people are not exposed to health and safety risks. This includes risks of sexual harassment.

Sexual harassment can occur between workers and other people at their workplace, including customers, suppliers or visitors to the business. Businesses need to consider sexual harassment as both an employment/discrimination issue and a WH&S issue, affecting ALL workers, including contractors & volunteers.

In light of the changes, employers should ensure employees are trained on the impending changes and audit their workplaces against the new obligations, ensuring work cultures are not hostile and that they have systems and processes to satisfy the obligations under the new positive duty. A few initial steps business can consider include:

Ensure your culture is inclusive and void of offensive, humiliating, or sexist comments, behaviours, or jokes.
Implement strong measures to respond to and prevent sexual harassment in the workplace, such as developing a grievance and complaints policy.
Implement a standalone sexual harassment workplace policy

Risk of doing nothing?

Employers may be vicariously liable under the Sex Discrimination Act if they do not take “all reasonable steps” to prevent the conduct. An employer may be liable for sexual harassment if there is evidence that they knew or reasonably could have known about the harassment yet did nothing to stop it.

What resources are available to assist?

There is a wealth of resources to support organisations in meeting their obligations under the new legislation. The Respect@Work website is an initiative of the Australian Human Rights Commission and provides a resource hub full of surveys, policies, training, guidance, and more. Other resources include:

The Fair Work Commissions free workplace sexual harassment online course 
Fair Work Ombudsman advice on sexual harassment in the workplace 
Safe Work Australia  for information about work health and safety duties
National regulator: Comcare

You can also visit the work health and safety authority in your state or territory: 

Lastly, you can also visit the human rights, anti-discrimination or equal opportunity commission in your state or territory: 

Now these new laws apply, we encourage our clients to take action sooner rather than later. Assess the risk in the workplace, put a prevention plan in place, and communicate any changes. This is especially important in the lead-up to end-of-financial-year festivities and celebrations.

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