The Respect@Work Act was described as “game changing” by Australia’s former Sex Discrimination Commissioner, Kate Jenkins. During her term as Commissioner (April 2016 - April 2023) she led the landmark Respect@Work: National Inquiry into Sexual Harassment in Australians Workplaces Report (2020) which examined the prevalence and impact of sexual harassment in Australian workplaces.
The Federal Government committed to implementing all 55 recommendations of the report in full and have implemented major changes, including the responsibility on employers to prevent sexual harassment.
Since it is a year since the passing of this bill and the subsequent law, we wanted to take the opportunity to provide a recap on the amendments to the bill and the impact it has had on all businesses since the law was adopted.
The Sex Discrimination Act 1984 (Cth) has been amended to prohibit conduct that subjects another person to a workplace environment that is hostile on the grounds of sex. Most significantly the Sex Discrimination Act 1984 was amended to introduce:
- A new responsibility on employers and persons controlling a business or undertaking (PCBUs) to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based discrimination and harassment, hostile workplace environments and victimisation. The Act expressly acknowledges the new responsibility does not limit or otherwise affect a duty that an employer or PCBU has under work health and safety legislation.
- An express prohibition against subjecting another person to a workplace environment that is hostile on the ground of sex.
- A lower threshold for sex-based harassment, by requiring the conduct to be 'demeaning' rather than 'seriously demeaning'.
Sexual harassment in the workplace may occur when the environment is sexually charged or hostile, creating a feeling of unwelcome or exclusion by a person, even if the specific conduct is not directed at an individual. This kind of environment can increase the risk of other forms of unlawful discrimination such as on the grounds of disability or race. The protection will not require the conduct to be directed to a specific person but instead prohibits conduct that results in an offensive, intimidating or humiliating environment for people of one sex. Features of this may include things such as:
- unnecessary familiarity and suggestive language
- explicit physical contact and unwelcome touching
- prolonged staring or leering
- display or dissemination of sexually explicit images and content
- unwanted romantic overtures
- intrusive commentary about someone’s body or private life
- any of the above through internal chat channels such as teams or through text or social media platforms
These changes represented a significant and qualitative shift away from a complaint-based system to one where an organisation must take ‘reasonable and proportionate measures’ to eliminate sex discrimination, including sexual harassment, as far as possible and prevent their employees and the organisation itself, from engaging in discriminatory/harassing conduct. An organisation must also be responsible for protecting its employees and workers from being subject to discriminatory/harassing conduct by third parties, such as customers and clients.
The content of this duty and the meaning of ‘reasonable and proportionate measures’ are adaptable and will vary depending on the size, nature and circumstances of your business and financial resources. Some possible examples include:
- implementing policies and procedures
- collecting and monitoring data
- providing the appropriate support to workers and employees
- delivering training and education around the unlawful conduct on a regular basis. This may be done via staff meetings, training of new employees or by providing employees with relevant resources and information.
The AHRC (Australian Human Rights Commission) have launched a new Respect@work website with various resources to assist in complying with the new responsibility to employers and other obligations.
Visit the Respect@Work website
Taking proactive steps to address discriminatory and harassing conduct and tackle problematic cultures will help to create respectful and productive workplaces.