With effect from 1 July 2025, Queensland employers will be required to comply with broadened anti-discrimination laws, including new attributes, definitions and an expanded positive duty to eliminate all discrimination, harassment and objectionable conduct.
The Queensland’s Respect at Work and Other Amendment Bill 2024 (Qld) (Respect@Work Bill) adopts a broader approach than the national standards, by introducing a new positive duty to take reasonable and proportionate measures to eliminate discrimination on the basis of all protected attributes, as well as sexual harassment.
Key legislative changes at a glance
The Respect@Work Bill introduces several critical changes to the Anti-Discrimination Act 1991 (Qld) (AD Act) and the manner in which discrimination matters are to be handled. At a glance, the legislative changes include:
- introduction of a broader positive duty, covering all forms of unlawful discrimination, harassment and objectionable conduct;
- introduction of new protected attributes of ‘expunged convictions’, ‘homelessness’, ‘irrelevant criminal record’, ‘irrelevant medical record’, ‘physical appearance’ and ‘subjection to domestic or family violence’;
- modernising existing attributes, such as replacing ‘pregnancy’ to ‘pregnancy and potential pregnancy’;
- protection for a combination of two or more attributes;
- shifts the burden of proof to the respondent in anti-discrimination applications. This means the complainant only needs to establish the asserted discrimination, then the burden shifts to the respondent to prove the reason for the conduct was not because of the attribute;
- introduction of investigative powers to the Queensland Human Rights Commission (QHRC) into systematic issues involving discrimination on the basis of sex and new enforcement powers to ensure employers’ compliance with positive duties;
- redefining ‘direct discrimination’, where the attribute causing discrimination need only be one of the reasons (as opposed to being the substantial reason) for the unfavourable treatment (as opposed to less favourable);
- redefining ‘indirect discrimination’ to imposing a condition, requirement or practice that has, or is likely to have the effect of disadvantaging another person because of the attribute and such imposition is not reasonable. This can include creating an environment in which a person with an attribute is disadvantaged. The considerations of reasonableness have been expanded;
- an aggravating sentencing factor where an adult offender has used violence or caused physical harm to a person in their workplace. This includes sexual assaults;
- extended timeframe to file a complaint regarding harassment and discrimination to two years;
- new prohibitions of harassment based on sex and hostile work environments; and
- permitting representative complaints which will commence on 1 December 2024.
Positive Duty: extending beyond sexual harassment
The Respect@Work Bill adopts the national standard of a positive duty, however expands it to cover all forms of unlawful discrimination, harassment and objectionable conduct. This means employers must take reasonable and proportionate steps to eliminate all unlawful discrimination, including direct and indirect discrimination.
The Explanatory Memorandum provides guidance on how an employer can comply with its positive duties, such as:
- implementing policies that promote respectful workplace behaviour;
- ensuring easily accessible information is available;
- conducting surveys to assess awareness and experiences of discrimination or harassment in the workplace;
- addressing disrespectful or unlawful behaviour through informal or formal disciplinary actions; and
- ensuring leaders regularly communicate and reinforce respectful behaviour expectations.
New QHRC Investigative Powers
Like the Australian Human Rights Commission, the Respect@Work Bill grants the QHRC expanded investigative powers, allowing it to intervene when it suspects non-compliance with positive duty obligations, or where there is, or suspected to be, systematic issues relating to a work-related contravention on the basis of sex.
In circumstances where the QHRC finds non-compliance with positive duties, the QHRC has the powers to:
- enter into enforceable undertakings with the duty holder;
- issue a compliance notice; and
- seek tribunal-ordered compliance.
For investigations into systematic work-related contraventions on the basis of sex, the QHRC may prepare a report to be provided to the Minister to be tabled within six sitting days of receiving it.
Prevention Plan
The new legislative requirements will also interact with the recent amendments to the Work Health and Safety Regulation 2011 (Qld) (WHS Regulation) which requires PCBUs to prepare, consult and implement a sexual harassment prevention plan by 1 March 2025.
The plan must outline and assess the risks related to sexual harassment, control measures to mitigate those risks and clear procedures for reporting and handling harassment incidents. The plan must be accessible to all employees, and reviewed regularly after an incident, requested by a WHS representative, or otherwise every three years.
Failure to comply can result in fines of up to $9,678 for an individual (or $48,390 for corporations).
We consider it possible that the obligation to prepare a prevention plan will be taken into account when considering whether an employer has met the positive duty under the Respect@Work Bill. Employers will need to consider preparing a prevention plan which not only deals with sexual harassment but all forms of unlawful discrimination.
Takeaways for 2025
With the commencement of the new legislative changes approaching, Queensland employers and any organisation that has Queensland operations must take immediate action to ensure compliance with the new laws. This will include:
- Preparing a Prevention Plan, addressing the risks, control measures and reporting procedures in accordance with the WHS Regulation and regulations. Consider conducting workplace surveys and undertake risk assessment to tailor the plan to the business’ specific risks. This plan must be implemented by March 2025.
- Reviewing workplace environments to ensure that employees are not exposed to a hostile work environment on the basis of sex.
- Reviewing and updating workplace policies and trainings to ensure it aligns with the new AD Act, incorporating new protected attributes, distribution and training of the prevention plan and positive duties. Managers should actively promote and model respectful behaviour, setting a tone that aligns with the new legislative requirements.
- Preparing for QHRC oversight by training relevant employees to cooperate with any QHRC investigations and keep through documentation of preventive actions.
Given Queensland’s broader approach, it is possible that other states may follow suit, adopting similar measures to address discrimination and harassment more comprehensively. Employers across Australia will need to keep an eye on these developments, as the landscape of workplace compliance continues to evolve.
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The views expressed in this article are general in nature only and do not constitute legal advice.
Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.