Since the Respect@Work reforms were introduced, employers have focused on the implementation of strategies, programs and procedures to prevent sexual harassment in the workplace and meet the high threshold set by the positive duty. But this implementation phase is coming to an end and being replaced by an enforcement era. What we are now seeing is the first cases under the Fair Work provisions being decided, an increase in the Australian Human Rights Commission (“AHRC”) enforcement activity and indications about future reforms.

First compensation awarded

One of the key Respect@Work reforms gave employees the ability to bring workplace sexual harassment claims under provisions in the Fair Work Act 2009 (Cth) (“FW Act”). The first such case has now been decided, with the employee being awarded $90,000 for non-consensual hugging and kissing.

While the outcome itself may not be groundbreaking, several elements of the decision are worth noting beyond it being the first case brought under the FW Act sexual harassment provisions. Of the $90,000 awarded, $40,000 related to separate contraventions of the FW Act, including the employer’s failure to provide a Fair Work Information Statement and access to the relevant modern award. It’s a reminder that such compliance failures can result in significant penalties when coupled with other claims. Further, although the employer organisation was in liquidation, the orders were made personally against the sole director, demonstrating that individuals are not insulated from liability under these provisions.

The enforcement era

The obligations the Respect@Work reforms placed on employers are no longer hypothetical. The AHRC’s positive duty enforcement powers are being exercised. The AHRC has confirmed it is running six formal inquiries, monitoring a further 18 organisations and has received roughly 140 complaints relating to potential non-compliance. The details remain confidential, which limits how much employers can learn from these matters directly, but it is expected that details will start to emerge if the AHRC is required to take steps to enforce any orders through the courts. This will provide practical guidance in relation to what the court expects employers to do to satisfy the positive duty.

Where to next?

Looking ahead, the AHRC’s Speaking from Experience report has put forward 11 recommendations for further reform, the most significant being the introduction of civil penalties for positive duty breaches. The AHRC is also continuing to push for the positive duty model to be extended across other federal anti-discrimination legislation, including age, race and disability.

Together, these developments signal the direction of future reforms with stronger enforcement powers and higher compliance expectations for employers.

What this means for employers

The first stage of the Respect@Work reforms was largely focused on guidance, documentation, reporting, training and policy development. The expectation is that employers are now complying with the positive duty and are aware of the increased expectations around preventing sexual harassment in the workplace. Going into the enforcement era, employers may be required to demonstrate how they are meeting the positive duty.

It is prudent for employers to look ahead at the future of reforms and start reviewing internal practices, policies and procedures with these in mind. Employers should be starting to extend Respect@Work-style compliance thinking to other areas of discrimination law in anticipation of broader change.

Read more about the Respect@Work reforms in our articles here and here.