Federal Parliament has passed the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (the “Bill”) which brings into force a number of amendments to the Sex Discrimination Act 1984 (“SD Act”). The most significant of these amendments is the positive obligation on employers to take reasonable steps to eliminate sexual harassment in the workplace.

The Bill was presented to Parliament after the Federal Government committed to enacting all the recommendations from the Respect@Work report which was developed following a national inquiry. You can read our update from when the Bill was first introduced to Parliament in September 2022 here.

The key changes

Most significantly for employers, the amendments impose a positive obligation on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. To comply with the SD Act, employers can no longer adopt a reactive approach and are required to take proactive steps to prevent discrimination and harassment in the workplace.

Employers will be required to comply with this positive duty 12 months after the Bill receives royal assent. We discuss what is required of employers and the steps they should be taking now in our recent article here.

Other changes include:

• The SD Act will expressly prohibit conduct that creates a hostile work environment on the grounds of sex.
• The Australian Human Rights Commission (“AHRC”) will have additional powers to monitor, assess and enforce compliance with the positive duty, and can inquire into an employer’s compliance if it reasonably suspects that an employer is non-compliant. The AHRC will also be given broad inquiry functions to investigate systemic unlawful discrimination and sexual harassment.
• Unions and other representative groups will be able to bring representative claims to Court.
• The public sector will be required to report to the Workplace Gender Equality Agency, which brings the public sector into line with the private sector regarding gender equality reporting.

Cost protections

The key difference between the initial Bill presented to Parliament and the version that was passed by Parliament is in relation to legal costs. Originally the Bill provided that where an applicant made a complaint to the AHRC, the complaint was terminated by the AHRC and progressed to Court, each party would bear their own costs. However, this proposal has been scrapped from the Bill due to concerns raised by multiple stakeholders that the provisions may negatively affect applicants and consequently deter victims from raising complaints.

The issue has been referred to the Attorney-General’s Department for review and it is estimated that this review will be completed in May 2023. The Government has indicated that they will legislative whatever cost model is recommended from the Attorney-General. In the meantime, the Courts will continue to have broad discretion to award costs as they see fit.

Next steps

It is important for employers to start taking steps to ensure compliance with the positive obligation to eliminate sexual harassment. Many of the measures required will take some time for employers to implement. Existing policies, procedures, training and systems will likely need to be updated and employers will need to determine whether there is a gap between their current policies, procedures and systems, and the standard required by the SD Act.

Kirryn West James, Director and Vanessa Yol, Graduate Associate