The Respect at Work Act will see milestone changes to workplace sexual harassment laws in Australia
Workplaces must prepare for significant changes to sexual harassment, sexual discrimination, and victimisation laws after the Parliament of Australia passed the Respect at Work Act in November 2022. It received Royal Assent, on 12 December 2022 and Australian workplaces will have a 12-month grace period to implement changes so they can comply with the new laws. Here’s what you need to know.
What is the Respect at Work Act?
The Act focuses on workplace sexual harassment, sexual discrimination, and victimisation. It’s the result of the Australian Human Rights Commission’s Respect@Work Report of 2020, which made 55 policy and law reform recommendations.
It’s a “prevention is better than cure” approach, with workplaces under a positive obligation to reduce the risk of sexual harassment, discrimination and victimisation. As an employer, you must:
- Ensure your business meets the new legal standards.
- Adopt procedures to assess how your preventative measures are performing.
- Assess your workplace to prevent and eliminate the risk of sexual harassment, discrimination and victimisation.
The Respect at Work Act is part of the Federal Government’s broader plan for Australian workplace relations. A week after passing, Parliament also passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay Act (the Act). This legislation sets out prohibitions on workplace sexual harassment. Importantly, it protects the following people from sexual harassment:
- A worker.
- A person applying for a job (paid or voluntary).
- A person who runs a business.
The Act also recognises that perpetrators of sexual harassment can include third parties, for example, customers and clients. In addition, employers may be responsible for any sexual harassment perpetrated by staff – a concept known as vicarious liability – if they have failed to take reasonable preventative steps. The effect is to broaden the definition of sexual harassment and the circumstances in which the law prohibits it.
How will the Respect at Work laws operate?
Businesses have until December 2023 to ensure their workplaces comply.
There are four key features of the new laws:
1. Taking active steps to prevent sexual harassment
Workplaces must take active steps to reduce or eliminate the risk of sexual harassment, sexual discrimination, and victimisation to ensure the health and safety of all workers.
Appropriate active steps will depend on the circumstances and will be affected by various factors, including the workplace’s:
- financial situation.
While there isn’t a one-size-fits-all approach, some examples of positive steps to reduce harassment include:
- Introducing new policies.
- Providing training on policies and procedures.
- Collecting and monitoring data.
- Delivering regular training and education about unlawful conduct.
- Providing appropriate support to workers and employees.
- Assessing risks in the workplace.
- Implementing prevention plans.
- Communicating any changes to prevention plans.
2. New powers for the Australian Human Rights Commission (AHRC)
The AHRC will have powers to:
- Check whether a business is complying with its duty.
- Intervene if there are issues.
- Compel the business to implement or improve its preventative measures.
It can do this if it reasonably suspects that the business is failing to meet its duty. If necessary, it can apply to a court to intervene if the business fails to comply. There are penalties for non-compliance.
The ARHC will also be able to investigate systematic unlawful discrimination in a workplace, industry or sector.
3. Taking action against hostile work environments
The new laws recognise that work environments can be hostile due to sexual harassment, sexual discrimination, or victimisation. This type of conduct is prohibited. The legislation seeks to set clear boundaries about what is and isn’t acceptable conduct.
Hostile work environments are often identified where there is conduct of a sexual nature in which another person experiences unreasonable offence, humiliation or intimidation. The behaviour doesn’t need to be targeted at that person, nor is it necessary for them to have invited the conduct. It can be general.
Examples of elements that make work environments hostile include:
- Pornographic materials on display.
- Nuisance phone calls.
- Threatening or offensive jokes.
- General sexual banter or innuendo.
Whether a work environment is hostile will be determined by various factors, including:
- The seriousness of the conduct.
- Whether it is ongoing.
- The role, influence or authority of the person engaging in the conduct.
- Anything else that may be relevant.
4. Cost protection for applicants
The new laws recognise that legal costs are one of the biggest barriers to taking legal action. Accordingly, they adopt cost neutrality, which allows each party to bear their own costs. The aim is to remove the risk that a complainant may be ordered to pay the other party’s legal costs. However, the courts retain the discretion to order costs against a party, for example, if a claim is unreasonable or vexatious.
How should I prepare my business?
Identifying what changes must be made in your business may take some time. You may need specialist human resources or industrial relations guidance to transition effectively. Therefore, it’s critical that you start the process as soon as possible. These laws affect every business, so there may be a significant number of organisations seeking external help. It may impact the time it takes you to implement changes in your organisation.
While there’s no universal approach to compliance, there are some key things to check, including:
- Whether your workplace has policies and procedures dealing with sexual harassment, anti-discrimination and victimisation, and when they were last reviewed. Also, whether they need amendments and how they are enforced.
- Whether your staff (including managers and leaders) need training in the changes to policies and procedures. Consider booking training sessions that specifically educate staff about how these issues can arise and what to do about them. Training should also cover the disciplinary consequences of any breaches.
- Train your managers and leaders in related issues, responding to complaints and proactively monitoring the workplace. Documenting these things will also be critical.
- Critically evaluate the work environment and culture and consider whether some staff may find it hostile. Then, implement changes and training as necessary.
- Consider what support your business will offer complainants and witnesses. Consider internal support (for example, time off work, relocating or disciplining the perpetrator) and external support (for example, counselling).
- Develop a system for ongoing risk assessments, for example, surveys, interviews, analysing any concerning employee behaviour, and identifying hazards.
In short, policies, training and monitoring will be critical to compliance with the new laws.
There are three key things to note about the new laws:
- There’s a twelve-month transition period before they become enforceable; and
- Every workplace’s focus must be preventing sexual harassment, sexual discrimination, and victimisation rather than reacting when dealing with complaints.
- The obligation is ongoing. You must vigilantly monitor and adjust your workplace practices to do everything reasonable to comply with the new laws.
The Respect at Work laws are the biggest shake-up to anti-discrimination and harassment laws since the 1980s. Such laws are now widely considered part of workplace safety, and the message is that they are to be treated with the same level of seriousness. Employers are legally obliged to strive for improvements constantly.
We are now working with our clients to assess what compliance issues may arise and how best to address them. We encourage you to book your management or staff training with us as soon as possible.
The Respect at Work Act will see milestone changes to workplace sexual harassment laws in Australia Workplaces must prepare for significant changes to sexual harassment,
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