Last week, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Bill) was introduced to Parliament by the Government.
The Bill sets out the long awaited detail on the promises made going into the May election, legislating the 7 remaining recommendations from the [email protected] report not enacted by the former Morrison Government.
What are the key changes?
- Specific prohibition of hostile workplace environments.
- A positive duty to take reasonable and proportionate measures to eliminate unlawful sex discrimination, including sex discrimination, sexual and sex-based harassment, hostile work environments and victimisation.
- Conduct is no longer required to be seriously demeaning to be unlawful harassment on the ground of sex – this reduces the threshold and makes it easier for applicants to make out claims of harassment on the ground of sex.
- The Australian Human Rights Commission (AHRC) gain powers to enforce the positive duty, including with guidelines, education, inquiries, compliance notices, court orders and enforceable undertakings.
- The AHRC will be able to conduct inquiries into systemic unlawful discrimination.
- Unions can more easily commence Federal Court representative actions for at least one person – possibly paving the way for class actions.
- A neutral costs approach under which each party will bear their own costs in sexual harassment proceedings.
- “Sex” or related characteristics only need to be “a reason” for the conduct. They do not have to be the ‘only reason’ or the ‘real reason’ and the fact there may be other reasons such as age or race does not prevent the conduct being unlawful.
What is the positive duty?
The positive duty requires an organisation to take reasonable and proportionate measures to eliminate, as far as possible sexual harassment, harassment on the ground of sex, hostile workplace environments or acts of victimisation against persons relating to their complaints, proceedings, assertions or allegations of any of that conduct.
Reasonable and proportional measures will vary, depending on the circumstances of a particular workplace. It depends on the size, nature and circumstances of the business, the available resources (ie, financial or otherwise), the practicality and costs of those measures and other relevant matters.
For example, larger and better resourced organisations will need to implement more extensive measures.
The Explanatory Memorandum says the new positive duty in the Bill aligns with the exemption to vicarious liability under the Sex Discrimination Act 1974 (ie, as is the case in Victoria). This exemption provides that an employer is not liable for the actions of the employees or agents if the employer has taken “all reasonable steps” to prevent their employees from engaging in the conduct.
On this basis, employers should already take preventative action, but we suspect many may not have done this.
At a general level, the positive duty requires organisations to:
- Identify and understand potential areas of non-compliance (ie, risk assess).
- Develop a strategy for meeting and maintaining compliance (ie, have a prevention plan).
- Review and improve compliance as reasonably necessary in the organisation’s particular circumstances.
Specific actions may include:
- Reviewing and amending discrimination and harassment policies and procedures consistent with the positive duty and other amendments.
- Communication and consultation with all workplace participants, including with periodic reinforcement. For example, by emails, intranet releases, toolbox talks etc.
- Overt buy-in from senior management who must “walk the talk” and must model best practice bystander
- Fair, timely and effective internal complaints procedures which treat all complaints seriously and investigate them promptly. This should be victim centric.
- High quality training, which educates all workplace participants about their discrimination and harassment policies and procedures, including with case studies and interactive activities to embed understanding. Training must give real life examples of behaviours and how victims or bystanders can best respond.
The AHRC will be able to undertake investigations where it suspects systemic unlawful discrimination. This is unlawful discrimination that affects a class or group of persons and is continuous, repetitive or forms a pattern and the AHRC considers it is appropriate to investigate. This inquiry could be within an individual business or across multiple businesses within a broader industry or sector. Outcomes may simply be a report to the Minister or may be a public report and may include recommendations.
The AHRC may also conduct inquiries if it “reasonably suspects” non-compliance. For example, this may be triggered by information or advice from other agencies or regulators, information from impacted people or media reporting. The AHRC may issue a compliance notice, enforceable by an order from the federal courts. Organisations may enter into enforceable undertakings with the AHRC.
These inquisitory functions will not commence until 12 months after Royal Assent, during which time the AHRC will prepare and publish guidance materials and organisations must take steps to understand their obligations and implement all necessary change.
What is a hostile work environment?
A ‘hostile workplace environment’ is where one person’s conduct results in the workplace environment being offensive, intimidating or humiliating to a second person of a particular sex.
A court looks at the behaviour itself, not what the person intended or how the second person received it. The fact that a person created a hostile environment unwittingly is not a defence.
Circumstances which contribute to this assessment include:
- The seriousness of the conduct (ie, more relevant for a single incident).
- Was it continuous or repetitive (ie, more relevant if it is less serious)?
- Did the person engaging in the conduct (or inaction) have a senior role, influence, or were they in a position of authority (ie, manager, supervisor or business owner)?
- Are there any relevant circumstances such as the environment or culture of the business (ie, single-sex environment or previous incidents)?
In a hostile work environment, the offending person does not need to direct their conduct at the person making a complaint or even anticipate the person may be impacted by the behaviour.
The offending person only needs to anticipate a person of one sex in general would find the environment hostile.
Universal paid family and domestic violence leave
While not part of the [email protected] Bill, in the same sitting, the Government also introduced a further Bill to amend the Fair Work Act 2009 to replace the current entitlement in the National Employment Standards to five days of unpaid family and domestic violence leave in a 12-month period with an entitlement to ten days of paid leave for full-time, part-time and casual employees. The Bill also proposes to extend the definition of family and domestic violence to include conduct of a current or former intimate partner of an employee, or a member of an employee’s household.
By providing for paid family and domestic violence leave as part of the National Employment Standards, the amendments will ensure that all employees are entitled to paid family and domestic violence leave irrespective of what industrial instrument they are covered under, or not.
While seemingly uncontroversial on its face, the extension of the paid entitlement to casual leave raises questions about how the entitlement will apply in respect of casual employees, particularly “genuine” casual employees who do not perform regular and systematic hours of work. The Bill provides that a casual employee will be entitled to be paid the full rate of pay (ie including any shift penalties and loadings) that they would have been paid if they had worked the hours in the period for which the employee was rostered.
In practice, casual employees, particularly those in service industries will often be rostered at relatively short notice to fill a gap in service needs, and questions will accordingly arise around how far in advance a casual employee will be deemed to have been “rostered” to gain an entitlement to paid leave if they are ultimately unable to attend that shift due to family and domestic violence.
What does this mean?
While amendments may be made around the edges, it is very likely that both Bills will pass through both Houses of Parliament and be enacted into law.
The introduction of the positive duty, as its name suggests, will give rise to an obligation for organisations to take positive steps to review and consider the measures that are currently in place to eliminate sexual harassment, sex-based harassment and hostile work environments. Having an appropriate workplace behaviour policy in place together with periodic training with minimal other control measures is very unlikely to satisfy the positive duty.
Rather, employers will be required to devise a prevention plan which adopts a suite of measures to meaningfully identify and eliminate these inappropriate behaviours.
As always, the team at Kingston Reid are well placed to support organisations in reviewing their existing practices and considering additional measures to cement the right for a safe and respectful workplace for all.