Respect at Work Bill - What it means for your business

The Respect at Work Bill, formally known as the Anti-Discrimination and Human Rights Legislation Amendment Act 2022, represents a significant shift in how Australia tackles sexual harassment, discrimination and misconduct in the workplace. The legislation implements seven key recommendations from the Australian Human Rights Commission's 2020 report, the National Inquiry into Sexual Harassment in Australian Workplaces.

New compliance requirements aim to stop sexual harassment and psychosocial harm in the workplace. They do so with flexibility and adaptability to ensure that small businesses are not burdened with the cost of implementing effective measures.

There are great business reasons to meet your obligations and build a safe, ethical and compliant workplace. As we will discuss, there are penalties for non-compliance and significant financial costs associated with hostile workplaces, such as litigation and loss of employee/customer trust.

What are the changes in the Respect at Work reforms

The Respect at Work Bill makes important updates to the Sex Discrimination Act 1984. The key changes introduced by the Bill promote an inclusive work environment by addressing several issues:

Prohibition of a hostile workplace environment on the ground of sex

The Bill introduces a comprehensive amendment that expressly prohibits conduct that creates a hostile workplace environment based on sex. The legislation is precise, detailing the conditions under which an environment is deemed hostile. Conduct in the workplace, whether continuous or isolated, that a reasonable person considers offensive, intimidating, or humiliating due to sex, is unlawful.

Various factors contribute to determining the hostility of a workplace environment, such as the severity of conduct, its frequency, and the authority of the person engaging in such conduct. The legislation recognises a range of behaviours and misconduct contributing to a hostile environment, including displaying inappropriate materials and offensive jokes, even if not directed towards specific individuals.

Positive duty on employers for elimination of discrimination

The legislation introduces a 'positive duty' on employers, urging them to be proactive in eliminating unlawful conduct. Instead of merely reacting to incidents of harassment or discrimination after they occur, the emphasis is now on prevention.

The new positive duty requires employers to take all reasonable and proportionate measures to eliminate a range of conducts, including:

• Discrimination based on sex.
• Workplace sexual harassment.
• Sex-based harassment related to work.
• Creating an environment that's hostile due to sex.
• Acts of victimisation associated with the above conducts.

The reach of this positive duty is extensive. Every entity governed by the Sex Discrimination Act, from individual sole traders to large business enterprises and even government agencies and bodies, is bound by this duty. Its scope ensures comprehensive coverage, encompassing employees, workers, agents, and even third parties that employees might interact with in a professional context. This includes customers, delivery personnel, and service providers.

Positive duty isn't a passive requirement; businesses must take all reasonable and proportionate measures to eliminate sexual harassment in Australian workplaces. The Australian Human Rights Commission will closely monitor compliance, ensuring businesses adhere to these new standards.

Recognising the unique structures of Australian businesses and organisations, the Act is both explicit in its requirements and flexible in its application. The AHRC acknowledges that businesses vary in size, nature, risks and resources. As such, while the legislation sets clear standards, it also allows adaptability. When it comes to compliance measures, what might be financially feasible for a large corporation might be impractical or too costly for a small business. The Act ensures that while standards are maintained, businesses have the flexibility to implement practical and proportionate measures to their size and nature.

To effectively address workplace sexual harassment, businesses must recognise and combat the root causes. This involves understanding the risks and dynamics that can lead to a hostile workplace environment and implementing reasonable and proportionate measures to counteract them. Regular training sessions, open communication channels, and clear policies can play an important role in this endeavour.

For more information about the positive duty guidelines, visit our comprehensive article.

Expanded power of Australian Human Rights Commission to investigate systemic unlawful discrimination

The AHRC has received expanded powers to ensure businesses and organisations adhere to the new positive duty. Under the revised framework, the AHRC is now equipped to:

Initiate inquiries: If there's a reasonable suspicion of non-compliance with the positive duty by an employer, the AHRC can launch an inquiry to assess the situation.

Offer recommendations: Post-inquiry, the AHRC can provide actionable recommendations to the concerned employer, guiding them on preventing recurring or ongoing non-compliance.

Issue compliance notices: These notices detail the specific actions an employer must undertake (or avoid) to rectify their non-compliance. The notice will also specify a reasonable timeframe for these actions.

Seek legal enforcement: If an employer fails to adhere to a compliance notice, the AHRC can approach the Federal Court or the Federal Circuit and Family Court of Australia to enforce it.

Forge enforceable undertakings: The AHRC can enter into binding agreements with employers, outlining specific actions and ensuring compliance.

Publish guidelines: AHRC can create and disseminate guidelines on complying with the positive duty.

Investigate systemic discrimination: The AHRC can investigate issues that hint at suspected systemic unlawful discrimination, which refers to continuous, repetitive, or patterned discrimination affecting a group or class of individuals.

Facilitate representative complaints: If a representative body wishes to escalate a complaint on behalf of one or more affected individuals, the AHRC can assist in transitioning the complaint from conciliation to a court application.

Employers must note that these expanded powers of the AHRC will be operational on 12 December 2023.

Facilitating complaints from AHRC to federal courts

In a significant move to ensure justice, the Act now allows representative bodies to escalate complaints from conciliation at the AHRC directly to the federal courts. This ensures that grievances are addressed at the highest levels and that victims have a clear path to justice.

Mandatory reporting for Commonwealth public sector

Commonwealth public sector organisations must annually report on specific gender equality indicators, similar to their counterparts in the private sector. By doing so, the Bill ensures that both public and private sectors are held to consistent standards on gender inequality, fostering a more inclusive and equal workplace across the board.

Clarification on victimisation as a basis for civil action

The legislation now clarifies that victimisation can be the foundation for a civil action of alleged unlawful discrimination. If someone faces adverse treatment or retaliation for standing up against discrimination, they can now take legal action more easily.

In essence, if you're penalised for calling out discrimination at work, the law is now more firmly on your side, offering a clearer path to seek justice.

Extended timeframe for filing discriminatory complaints

The Bill acknowledges the complexities and emotional challenges faced by victims of discrimination. The legislation has revised the timeframe for lodging complaints under anti-discrimination laws to address this. Previously, the Australian Human Rights Commission could terminate complaints if they were made more than six months after the alleged incident. However, this period has been extended to 24 months with the new amendments.

This change ensures that victims have ample time to process their experiences, seek necessary support, and make an informed decision about pursuing a complaint. It provides a more compassionate and realistic window for victims to come forward, ensuring their rights are upheld and they have a fair chance at seeking redress.

Redefined threshold for sex-based harassment

The Bill has amended the definition of sex-based harassment in the Sex Discrimination Act 1984 and the Fair Work Act 2021. The threshold for such conduct has been lowered from "serious demeaning conduct" to simply "demeaning conduct", ensuring that even subtle forms of harassment are addressed.

This modification ensures a more inclusive understanding of harassment. It recognises that even less overt forms of demeaning behaviour, which might not be overtly "serious", can still profoundly impact the individual at the receiving end. Such a change reflects a more nuanced understanding of workplace dynamics and the subtle ways discrimination can manifest.

Comprehensive protection for all workers

The Act broadens the umbrella of protection to cover a broader range of individuals in the workplace. All paid and unpaid workers, which include interns, apprentices, volunteers, and the self-employed, are now explicitly protected against sex-based and sexual harassment in the workplace.

The legislation extends the scope of the Sex Discrimination and Fair Work Act 2021 to cover all State and Federal parliament members, judges and their staff, consultants, and state and territory public servants.

How does the anti-discrimination legislation affect my business?

The Respect at Work Bill will directly impact how businesses and organisations operate in Australia. The Bill signifies a shift in focus from complaint-based mechanisms to prevention, placing greater responsibility on employers and organisations to proactively ensure a discrimination and harassment-free environment.

From 12 December 2023, the Australian Human Rights Commission has the power to enforce the positive duty compliance. Businesses and organisations should take immediate steps to meet compliance.

Immediate steps for businesses

1. Conduct a risk assessment

Before implementing any changes, understand where your organisation stands. Conduct a thorough risk assessment to gauge your workplace culture and identify potential areas of concern. This will provide a roadmap for the changes you need to implement. Alongside a risk assessment, consider conducting a culture audit. This involves gathering employee feedback to uncover hidden risks or issues that might not be immediately apparent. A culture audit can provide invaluable insights into the lived experiences of your employees, highlighting areas that need attention.

2. Align your policies with the new legislation

Review your current guidelines and refine workplace policies. Ensure they are in line with the Respect at Work Bill. This might mean updating certain sections or overhauling them entirely.

3. Revise workplace procedures

It's not just about having policies in place; it's about ensuring they are actionable. Refine your workplace procedures to ensure they align with the new legislation. This includes implementing secure and transparent reporting mechanisms and ensuring clear channels for addressing sexual harassment and sex-based discrimination in the workplace. 

Consider implementing anonymous reporting software. Such tools can be instrumental in the early detection of workplace issues, allowing employees to report concerns without fear of retaliation. By upholding the privacy and safety of the reporter, you encourage more people to come forward with concerns, fostering a culture of trust integral to a safer work environment.

4. Education is Key

Awareness is the first step to prevention. Once you've updated your policies, it's crucial to communicate these changes. Prioritise staff training to ensure everyone knows the changes and understands their implications. This will foster a culture of respect and understanding, reducing the likelihood of incidents. Ensure that all managers and workers in your organisation are aware of the updated policies. Regular reminders and training sessions help reinforce these policies' importance and ensure compliance.

Consider adopting bystander training. Bystander training is designed to empower individuals to intervene in unlawful conduct situations to prevent workplace sexual harassment, discrimination and violence. Such training can be a game-changer in shifting workplace culture.

Resources for businesses

To assist organisations with these new requirements, the AHRC has launched a Respect@Work website with resources, guidelines, and fact sheets. Additionally, the Elker blog will keep you updated on all legislative changes and how to implement these measures in the workplace.

Workplace sexual harassment matters

Creating a safe, ethical, and compliant workplace entails more than merely following the rules. It necessitates cultivating a culture of respect and transparency where every employee feels valued and safeguarded.

Fostering respect and openness

Establishing an environment where respect is the norm serves as the initial step. This process should encompass demonstrating appropriate behaviours across all organisational levels and delivering targeted training that underscores respectful and ethical conduct.

Supporting open communication

Another significant step is to provide anonymous channels for employees to inquire about policies. These avenues can encourage the reporting of concerns to clarify rights and obligations. Such an approach can prevent incidents from escalating into major issues. The establishment of a secure system to document incidents relating to sexual harassment in the workplace is critical.