While employers have been on notice since the Respect@Work report that sexual harassment and victimisation are clearly workplace safety risks with subsequent updating of policies and training, these changes should cause employers to reflect on whether enough has been done to focus on prevention.

Employers should review their approach to ensure it aligns with best practice and where appropriate consider implementation of a formal prevention plan, approved and adopted by the Board and senior leaders.

We drafted a checklist you can use to check your organisation is up to date:

Employers may also want to check out the recently launched Respect@Work portal by the Sex Discrimination Commissioner also provides a very useful compilation of relevant materials that will assist employers.

Further shifts in the way employers must address sexual harassment

Changes to the obligations of employers to prevent sexual harassment, hostile work environments and victimisation were made by the Commonwealth Parliament in late November, with the implementation of the remaining tranche of 7 recommendations arising from the Respect@Work report.

The Human Rights Legislation Amendment (Respect at Work) Bill 2022 was passed in the same week as the Australian Human Rights Commission released its sobering Fifth national survey on sexual harassment in Australian workplaces, which indicated that, despite reforms:

• one in three Australian workers experienced sexual harassment in the last five years
• only 18% of incidents were reported
• only one-third of workers considered that their employer was doing enough in relation to sexual harassment.

The legislative reforms represent a further significant change in the way sexual harassment is treated, with four major changes:

The positive duty to prevent workplace sex discrimination, harassment and victimisation

The new provision in the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) introduces a positive duty on all employers to take ‘reasonable and proportionate measures’ to eliminate unlawful sex discrimination, including sexual harassment and victimisation, as far as possible.

The reasonable and proportionate measures will depend on the circumstances of employers, but it is clear that simply providing training and having complaint mechanisms may not be enough, reflecting similar duties in work health and safety legislation, some state and territory discrimination legislation and in some non-binding state and territory guidance material and codes of practice.

The obligation extends to all those to whom the employer owes a duty under relevant WHS legislation, that is, employees, contractors and volunteers. What is reasonable and proportionate will depend on the employer’s operations (the size, nature and circumstances), resources (financial or otherwise), the practicability of measures available and any other relevant matter.

The positive duty is intended to align provisions relating to the vicarious liability of employers for unlawful acts done by their employees or agents.

Hostile Work Environments

The Sex Discrimination Act now also prohibits conduct that subjects a person to a workplace environment that is hostile on the grounds of sex.

This has a broad meaning addressing where:

• the conduct occurring in a workplace where either the victim or perpetrator works
• the victim is in the workplace at the time the conduct occurs or afterwards, and
• 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 conduct.

This amendment clarifies the law so that it is understood that sexual harassment may occur where a work environment or culture is sexually charged or hostile, even when the relevant conduct is not directed at a particular person.

Changes to the role of the Australian Human Rights Commission

The AHRC has been given new powers, to commence in 12 months, to:

• conduct inquiries into compliance with the positive duty, and to make recommendations on what should be done to meet that duty if it reasonably suspects there is not compliance
• issue compliance notices to address what must be done to meet that 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’.

Class Actions

The last substantive change relates to the power for representative bodies, including unions, to bring representative actions in the federal courts.