New Employer Obligations at Work

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Bill) yesterday passed both Houses of Parliament and will soon become law.

The Bill will implement a further 6 of the recommendations made in the [email protected] report, perhaps most notably for employers introducing a positive duty to take all reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, including sexual harassment, from their workplaces.

Key changes

The Bill amends the Sex Discrimination Act 1984 to prohibit conduct that makes workplaces hostile on the ground of sex. This covers situations where a person of one sex feels unwelcome or excluded by nature of the environment, even if the conduct is not directed towards any particular individual. It would likely include workplaces where obscene or pornographic materials are displayed, as well as workplaces where general sexual ‘banter’ or inappropriate jokes are commonplace.

Crucial for employers will be the obligation to take proactive steps to prevent sexual harassment, sex-based harassment, victimisation and hostile workplaces on the ground of sex. This duty applies to the conduct of other employees as well as third parties, such as customers or suppliers. What is considered reasonable and proportionate will depend on the size, nature and circumstances of each business. However, it is unlikely that just rolling out a policy and addressing complaints as they arise will be considered sufficient measures.

Additionally the Bill alters the law concerning sex-based harassment, no longer requiring conduct to be ‘seriously demeaning’. The threshold will be that the conduct was of a ‘demeaning’ nature, removing what was seen as an unnecessarily high bar.

What does this mean for employers?

Employers will need to conduct risk assessments that specifically consider the risks of sexual harassment and other forms of sex discrimination. Preventative measures should be put in place to address any risk areas identified, and the effectiveness of these measures should be monitored and reviewed on a regular basis.

The majority of the provisions in the Bill will take effect the day after the Bill receives Royal Assent, however, the positive duty to eliminate sex discrimination will not be enforceable until 12 months later. Nevertheless, employers should not wait to take action – in some cases the cultural shifts required to meet the positive duty will take some time, and actions taken now will reap rewards in 12 months’ time.

Our expert workplace relations team recently hosted a webinar outlining the key changes and actions employers can take to ensure compliance with the new legislation. Members will be able to access the webinar recording as well as an exclusive guide to addressing sexual harassment in the workplace via their member portal next week.

There are a number of ways NRA Legal can assist you in meeting your new obligations, from conducting a sexual harassment audit for your business, to reviewing your current policies and procedures and providing tailored training to your employees. Contact us on 1800 RETAIL to find out more.