2023 Workplace Sexual Harassment Reforms
In 2018, against the backdrop of high-profile Australian cases, the #MeToo movement, and growing recognition of the prevalence, and immense harm caused by sexual harassment, Sex Discrimination Commissioner Kate Jenkins announced a national inquiry into sexual harassment in Australian workplaces.
This was followed by the landmark ‘Respect@Work Report’ (2020) and subsequent passage of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (see, ‘APH’). The latest tranche of legislative reforms, outlined below, brings about the most significant of these reforms by introducing obligations on ‘duty holders’ such as business owners, officers, directors, and employers, to address the ongoing issue of sexual harassment in the workplace.
2023 & Beyond: What new duties are being introduced?
On 12 December 2022 the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 was introduced. The legislation gave effect to recommendations from the Respect@Work Report including two new duties which must be complied with by the end of 2023:
“The Positive Duty”The first duty requires all duty holders to take ‘reasonable and proportionate measures’ to proactively eliminate unlawful sex discrimination, including sexual harassment and victimisation in the workplace, as far as reasonably possible.
“Hostile Free Workplace Duty”The second duty requires that duty holders prohibit conduct which subjects a person to a workplace environment that is hostile on the grounds of sex.
What are the practical implications of these new reforms?
Practically these changes will require a shift from a complaints-based or reactive model of addressing workplace sexual discrimination and harassment to a proactive model aimed at preventing sexual harassment and discrimination in the workplace.
Put another way, rather than responding to inappropriate conduct that has already occurred, the new obligations require duty holders to take ‘reasonable and proportionate measures’ to proactively prevent and eliminate sex discrimination in the workplace as far as reasonably possible.
Whose behaviour are duty holders responsible for – is it just employees?
It’s critical to understand that these duties are not only owed to employees but also contractors and volunteers in the workplace. Further, the duties apply when the conduct is engaged in by the duty holder themselves, but also when engaged in by their employees, other workers and agents, and even third parties in some instances. Duty holders will need to assess their workplace practices in order to comply with the new obligations and avoid running afoul of the consequences of failing to do so.
What if a duty holder is found to breach the new duties?
In addition to potential reputational and workplace engagement or cultural impacts, failure to comply with these reforms has the potential to result in civil and criminal legal penalties, Federal Court enforcement, and can ‘open the door’ to a new type of sexual harassment class action available to employer representative bodies (such as unions). Taking all reasonable and proportionate steps to prevent unlawful conduct will operate to exclude employers from vicarious liability for acts done and reduce risk under model WHS laws.
So, what are duty holders doing “in practice” to address these changes?
Now that these new laws apply, all duty holders should be taking steps to assess workplace risk, introduce risk controls such as prevention plans, and communicate changes as needed. Some examples of specific steps that duty holders can take to address these changes include:
- Recognising sexual harassment as a work health & safety risk
- Developing a dedicated sexual harassment risk register
- Consulting workers to identify risks in relation to sexual harassment
- Updating sexual harassment policies & processes
- Modernising internal complaints handling and grievance practices
- Uplifting organisational capabilities, understanding, awareness, and training
- Improving data monitoring and reporting mechanisms, and
- Encouraging by-standers to report inappropriate behaviours.
Ultimately duty holders must take steps which are ‘reasonable and proportionate’ which will depends on:
- the size, nature and circumstances of a business or undertaking,
- the business’ resources, whether financial or otherwise, and
- the practicability and costs associated with the actioning of these steps.
How can Nellers HR help?
Nellers HR have a range of resources which can be adapted to your specific workplace to ensure compliance with the new reforms. We are available to provide a personalised service with advice and strategies that are specifically tailored to suit your specific business and operational needs.