[email protected] & Gender Equality: what will change to the law look like?

A Labor government will … implement all 55 recommendations in the [email protected] report – not just the bits that are easy.

– Australian Labor Party 2022 Women’s Budget Statement

During the 2022 Federal Election, the Labor Party promised that – if elected – they would implement all recommendations contained in the [email protected] Report published by the Australian Human Rights Commission (AHRC). This report proposed extensive changes to federal sex discrimination legislation in order to properly address the prevalence of sexual harassment in Australia’s workplaces.

Now that the Labor Party is in government, attempts will be made to legislate these changes. In this insight we explore the likely changes and what it might mean for employers.

Background  

After [email protected] was handed down, the former Liberal-National Federal Government significantly amended the Sex Discrimination Act 1984 (Cth) (SD Act) and the Fair Work Act 2009 (Cth (FW Act).

These changes, which took effect from September 2021, included a prohibition against “harassment on the grounds of sex”, expanding the SD Act’s scope to ensure it covered all “workers” and “workplaces”, while also introducing a new jurisdiction in the Fair Work Commission to make orders stopping sexual harassment at work.

However, the Government stopped short of implementing all of the changes recommended by the AHRC.

What changes will the new government make?

While no definite amendments have been announced, we expect the new Labor Government will make changes in the following key areas.

Introducing a positive duty on employers

The Government is likely to introduce a positive duty on employers in the SD Act to “take reasonable and proportionate measures to eliminate sex discrimination, sexual discrimination, sexual harassment and victimisation, as far as possible” ([email protected], Recommendation 17).

This would bring the SD Act into line with model work health and safety (WHS) legislation, which imposes through the broad duty to eliminate or manage hazard and risks to workers health, a positive duty on employers to prevent sexual harassment so far as reasonably practicable.

The AHRC suggested that, in determining whether a measure was ‘reasonable and proportionate’, the SD Act prescribe factors that must be considered including the size of a persons’ business or operations, the nature and circumstances of their business or operations, their resources and operational priorities, the practicability and cost of the measures as well as other relevant factors.

The AHRC heard in the [email protected] inquiries that a lack of a positive duty meant employers placed a higher priority on complying with WHS and employment laws, leaving a heavy onus on individuals to complain of breaches to discrimination law. These changes, if made, would mean the onus will now be on the employer to do everything they can to ensure breaches don’t happen in the first place.

Expanding the powers of the AHRC

The Government is also likely to introduce broad powers for the AHRC in the Australian Human Rights Commission Act 1986 (AHRC Act) to assess compliance with the positive duty outlined above ([email protected], Recommendation 18) and investigate workplaces over systemic sexual discrimination and harassment ([email protected], Recommendation 19).

In particular, the AHRC specified that they should be given powers to require persons to give information, produce documents and examine witnesses. Penalties should apply for non-compliance when conducting such an inquiry. They suggested they be given the power to initiate ‘own-motion’ investigations.

While the Commission already has powers in section 31(b) of the AHRC Act to inquire into “act or practice” that may constitute discrimination, these inquiry functions are limited. The AHRC noted in [email protected] that their powers to require information, documents and examine witnesses are not available when conducting an inquiry into conduct done by or on behalf of a State or an authority of a State, within a State, or under State laws, that may amount to discrimination under section 31(b) of the AHRC Act.

New statutory principles

Labor will likely introduce the concept of ‘gender pay equity’ as an objective of the FW Act as well as a statutory ‘Equal Remuneration Principle’ to guide the Fair Work Commission. While not a recommendation in the [email protected] Report, Labor announced during the election of an intention that such changes would be made if elected.

The ‘equal remuneration principle’ is not a new idea. It was established by the International Labor Organisation some 70 years ago. It states that men and women should receive equal pay and benefits for the same work which requires the same skills, responsibility and effort under similar working conditions.

But, so the principle goes, even if the jobs are entirely different, equal remuneration is still a must where the jobs provide equal value. “This concept,” said the ILO, “ensures that men and women receive equal remuneration for jobs which may involve different types of qualifications, skills, responsibilities or working conditions, but which are nevertheless of equal value”.

Introducing cost protections in the Federal Court

Labor may now also introduce a cost protection provision in the AHRC Act if a claim proceeds to the Federal Court ([email protected], Recommendation 25).

The AHRC viewed this as necessary due to concerns that complainants of sexual harassment would be deterred from commencing proceedings and pursuing genuine claims based on a fear that they would be liable to pay the respondent’s legal costs.

The provisionwould most likely ensure that costs would only be ordered against a party if satisfied that they instituted proceedings vexatiously or without reasonable cause, or if the court is satisfied that a party’s unreasonable act or omission caused the other party to incur costs. This would bring the AHRC Act in line with the current cost protections in section 570 of the FW Act.

Legislative superannuation contributions on paid parental leave

The Government shelved the proposed change in May, but the Prime Minister stated that the party still wants to introduce it. Assistant treasurer Stephen Jones said that “whether we’re able to do it in the first term or not, should become pretty clear by the end of the year”.

Employers should watch this space closely, especially towards the latter half of the year.

What does this mean for employers?

It is clear that the government plans to take a strong stance in favour of gender equality and against sexual harassment at work, flagging changes that place the burden heavily on employers to take proactive steps or face serious consequences otherwise.

The introduction of a positive duty in the SD Act will mean the onus will now heavily be on businesses to proactively pursue the elimination of sexual harassment.

Whilst there has been no legislative change, we recommend employers act now so they are prepared once legislative attempts are made. In particular, companies should:

  • Identify key risk factors in their workplaces that may lead to sexual harassment and put together an action plan to eliminate or reduce those risks as far as possible.
  • Invest in training for all staff (including bystander training) to ensure employees know how to identify all forms of sexual harassment and what to do about it.
  • Conduct an extensive review of all sexual harassment policies, ensure they meet the new definitions contained in the SD Act (if they don’t already) and consider how to amend those policies to strengthen compliance with a primary duty, if it becomes law.
  • Review their payroll data and consider whether any changes need to be made in light of a potential introduction of the ‘Equal Remuneration Principle’.

As always, the team at Kingston Reid are here to lend a helping hand if you need assistance delivering training to your staff, reviewing your policies and procedures to ensure compliance and identifying the different risk factors within your workplace.

 

Lucas Moctezuma
Lawyer
+61 2 9169 8430
[email protected]
Michael Mead
Partner
+61 2 9169 8428
[email protected]