The Australian Government has introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (the Bill) which seeks to implement seven of the 55 recommendations from the Australian Human Rights Commission’s (AHRC) Respect@Work Report1 (see related article). Significantly, the Bill seeks to impose a positive duty on employers to “take reasonable and proportionate measures” to eliminate, as far as possible, certain discriminatory conduct including workplace sex discrimination, harassment, and victimisation.
Partner Andrew Tobin and Solicitor John Hickey highlight the forthcoming legislative changes proposed by the Bill and outline the need for employers to closely examine the risk factors pertaining to their workplace environments.
We anticipate that the Bill will become law soon enough, further advancing ongoing reforms falling out of the Respect@Work Report.
What does the Respect at Work Bill propose?
Positive duty to eliminate unlawful sex discrimination
The Bill seeks to amend the Sex Discrimination Act 1984 (Cth) (SD Act) to introduce a positive duty on all employers to “take reasonable and proportionate measures” to eliminate, as far as possible, specified forms of unlawful sex discrimination including:
- discrimination on the ground of a person’s sex;
- sexual harassment, or harassment on the ground of sex;
- hostile workplace environments; and
- acts of victimisation in response to allegations, assertions, complaints, or proceedings made under the SD Act.
The purpose of this amendment is to shift the focus of employers from responding to discrimination and harassment that has already occurred to proactively preventing discrimination and harassment in workplaces to achieve compliance with the SD Act.
The positive duty is intended to align with section 106 of the SD Act, which relates to the vicarious liability of employers and principals for unlawful acts done by their employees or agents. The default position under the SD Act is that employers and principals will be liable for the unlawful conduct of their employees and agents. However, an employer/principal can avoid liability where they can show that they have taken “all reasonable steps” to prevent their employers/agents from engaging in the conduct.
Similar provisions appear in state- and territory-based anti-discrimination legislation. It follows that all Australian employers should already be taking positive steps to prevent discrimination and harassment in their workplaces.
The positive duty is also intended to operate concurrently with the existing duties in the model work, health and safety laws, which require employers to provide a safe working environment for workers, so far as is reasonably practicable.
Subjecting a person to a hostile workplace environment on the ground of sex
The Bill proposes a new provision in the SD Act to prohibit conduct that subjects another person to a workplace environment that is hostile on the ground of sex. Although the existing provisions of the SD Act capture conduct that results in a hostile workplace environment, this amendment provides clarity to the current law and sets out the meaning of subjecting a person to a hostile workplace environment.
The proposed amendment will prohibit conduct which results in an offensive, intimidating, and humiliating environment for people of one sex.
Examples of conduct which may be considered “offensive, intimidating or humiliating” include:
- displaying obscene or pornographic materials;
- general sexual banter, or innuendo; and
- offensive jokes resulting in people of one sex feeling unwelcome or excluded by the general environment.
The duty to eliminate “hostile work environments” will also require employers to prevent offensive conduct within their workplaces perpetrated by external influences (e.g., by members of the public or suppliers).
The circumstances to be considered when determining whether conduct is unlawful will include:
- the seriousness of the conduct;
- whether the conduct was continuous or repetitive;
- the role, influence or authority of the person engaging in the conduct; and
- any other relevant circumstance.
The provision is intended to align with other provisions in the SD Act by using existing terms and concepts, such as “offensive, intimidating or humiliating” and the reasonable person test applicable to the determination of whether particular conduct is objectively offensive etc.
Enforcement of the positive duty
The Bill proposes to insert new provisions into the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to monitor and assess compliance of employers with the new positive duty to be inserted into the SD Act.
Relevantly, the AHRC’s powers will be extended such that it can enforce the positive duty by:
- conducting inquiries into compliance if it reasonably suspects that an employer is not complying with their positive duty;
- making recommendations to employers to achieve compliance with their positive duty;
- giving compliance notices specifying actions that must be taken by employers to address their non-compliance;
- applying to the Federal Courts for an order to direct compliance with a compliance notice; and
- taking enforceable undertakings from employers in accordance with the Regulatory Powers (Standard Provisions) Act 2014 (Cth).
The Bill provides that the AHRC’s new functions to monitor and assess compliance with the positive duty will commence 12 months after the Bill becomes law. This delayed commencement is intended to ensure that employers have sufficient time to understand their obligations under the positive duty and implement changes, if necessary.
Systemic inquiries into unlawful discrimination
The Bill proposes to insert a new provision in the AHRC Act to provide the AHRC with a broad inquiry function to inquire into systemic unlawful discrimination or suspected systemic unlawful discrimination. Although the AHRC presently has existing powers to inquire into systemic human rights and unlawful discrimination issues, this amendment would provide the AHRC with an enhanced inquiry function on its own motion.
The AHRC will be permitted to inquire into instances (or suspected instances) of unlawful discrimination within individual businesses, as well as instances (or suspected instances) of unlawful discrimination across multiple businesses within a broader industry or sector.
Once the AHRC has inquired into a matter, the AHRC may report to the Minister (currently the Hon Mark Dreyfus KC) in relation to the inquiry or publish a report in relation to the inquiry, or both, and, if appropriate, make recommendations to address the issues identified.
Representative applications
The Bill proposes to amend the AHRC Act to enable representative bodies (such as a union representing one or more workers) to make representative applications to the Federal Courts on behalf of people who have experienced unlawful discrimination.
Currently, representative bodies are permitted to initiate complaints in the AHRC on behalf of one or more persons, but they are not permitted to initiate unlawful discrimination matters in the Federal Courts should a complaint be unresolved and terminated by the AHRC.
Costs protection provisions
The Bill inserts a cost protection provision into the AHRC Act such that any application under the Act will be subject to a default ‘no-costs’ rule. Currently, litigation in the human rights jurisdiction of the Federal Courts is subject to the same cost principles as general litigation. That is, legal costs will usually ‘follow the event’, meaning that an unsuccessful party will ordinarily be ordered to pay their opponent’s legal costs, in addition to their own costs.
The prospect of an adverse costs outcome in the present system can act as a powerful disincentive for a potential complainant to pursue remedies into a court.
The Bill provides that, as a default position, each party will bear their own costs in an unlawful discrimination proceeding; however, the Court will retain a discretion to depart from this default position and make cost orders where they consider it just.
The use of that discretion will be just as important as the introduction of the ‘no-costs’ rule. An inability to recover legal costs can mean that the pursuit of an otherwise meritorious claim will not, after the complainant has paid their own legal costs, be economically worthwhile. This is hardly the right outcome for a complainant who is able to prove that, as the result of unlawful conduct, they have suffered loss or damage.
In considering whether to depart from the default position, the Court will be required to have regard to a range of factors including the financial circumstances of each of the parties to the proceeding and whether any party to the proceeding has been wholly unsuccessful.
Public sector reporting to WGEA
The Bill proposes to amend the Workplace Gender Equality Act 2012 (Cth) to require Commonwealth public sector entities to report against six gender equality indicators to the Workplace Gender Equality Agency.
Victimisation
The Bill seeks to clarify that victimising conduct can form the basis of both a civil action for unlawful discrimination in addition to a criminal complaint under the Anti-Discrimination Act 1991(Cth) (AD Act), Disability Discrimination Act 1992 (Cth) (DD Act) and the Racial Discrimination Act 1975 (Cth) (RD Act).
This amendment seeks to address judicial uncertainty as to whether the Federal Courts had jurisdiction to hear an application of unlawful discrimination under the AHRC Act, where the alleged unlawful discrimination is an act of victimisation brought as a civil action.
Timeframes for making a complaint
The Bill amends the discretionary grounds on which a complaint made under the AD Act, DD Act and RD Act may be terminated by the President of the AHRC and, in practical terms, extends the timeframe for making complaints under any of the Acts mentioned from six months to 24 months after the alleged unlawful conduct took place.
This amendment complements a corresponding change already made to the SD Act in 2021.
Amending the objects of the SD Act
The Bill amends the existing object clause of the SD Act to state that an object of the SD Act is to “achieve substantive equality between men and women”.
Key takeaways
Employers must be cognisant of the forthcoming legislative changes proposed by the Bill. In anticipation of the reforms, employers will need to closely examine the risk factors pertaining to their workplace environments and establish appropriate controls and performance standards to manage those risks under anti-discrimination and safety laws.
The shift in the existing legislative framework from reactive measures to preventative measures to eliminate, as far as possible, unlawful discriminatory conduct will require employers to do more than just implement another standard workplace policy.
To hear more about the recent changes to the legal framework applicable to sexual harassment in Australia and the increasing tendency of Australian courts and tribunals to award and uphold significant sums of damages in such cases, please view our webinar Confronting workplace sexual harassment head-on: A brave new world.
If you require any further information or clarification, or for assistance with reviewing existing sexual harassment policies and processes to ensure that your business is legally compliant, please contact our Workplace and Employment team at HopgoodGanim Lawyers.