Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022

Author:  James Sanders, Principal

On 27 September 2022, the Labor government introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (‘Bill’).

The Bill proposes to implement seven further recommendations set out by the Australian Human Rights Commission in its Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report.

The proposed changes include:

Amendments to the Sex Discrimination Act 1984

The Bill will amend the Sex Discrimination Act 1984 (Cth) to:

 1. Hostile Work Environment

Introduce a prohibition on a person subjecting another person to a workplace environment that is hostile on the grounds of sex.

A person will be deemed to have subjected a person to a workplace that is hostile on the grounds of sex, if:

• the first person engages in conduct in a workplace where the first person or the second person, or both, work; and
• the second person is in the workplace at the same time as or after the conduct occurs; and
• a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the sex of the second person by reason of:
  • the sex of the person; or
  • a characteristic that appertains generally to persons of the sex of the person; or
  • a characteristic that is generally imputed to persons of the sex of the person.

2. Positive duty to eliminate unlawful sex discrimination

Introduce a positive obligation on employers and persons conducting a business or undertaking (‘PCBU’) to take reasonable and proportionate steps to eliminate, as far as possible:

• Discrimination on the grounds of a person’s sex;
• Sexual harassment, or harassment on the grounds of sex;
• Work environments that are hostile on the grounds of sex;
• Acts of victimisation that relate to complaints, proceedings, assertions or allegations in relation to conduct mentioned in the 3 paragraphs above.

Whilst employers and PCBUs have long had a positive obligation to provide a safe system of work to all employees, the above changes extend this positive obligation to take active steps, rather than reactive.

The Explanatory Memorandum to the Bill provides that the amendments “would require measures be taken to prevent this conduct being engaged in by duty holders themselves, as well as their employees, workers and agents, and third parties, where applicable. This may involve implementing policies and procedures, collecting and monitoring data, providing appropriate support to workers and employees, and delivering training and education on a regular basis.”

Amendments to the Australian Human Rights Commission Act 1986

The Bill amends the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to:

1. Regulatory Powers

Provide the Australian Human Rights Commission (AHRC) with increased powers to:

• prepare, and to publish in such manner as the AHRC considers appropriate, guidelines for complying with the positive duty in relation to sex discrimination;
• enquire into a person’s compliance with the positive duty in relation to sex discrimination if the AHRC reasonably suspects that the person is not complying;
• if the AHRC finds a person is not complying with their positive obligation:
  • must notify the person in writing of its finding and the reasons for the finding; and
  • may notify the person of any recommendations by the Commission for preventing a repetition or continuation of the failure to comply;
• issue a written notice to a person who is not complying with their positive obligation, which must:
  • specify action that the person must take, or refrain from taking, in order to address the failure;
  • specify a reasonable period (starting at least 21 days after the day the notice is given) within which the person must take, or refrain from taking, the specified action; and
  • if the President considers it appropriate—specify a reasonable period within which the person must provide the Commission with evidence that the person has taken, or refrained from taking, the specified action.
• investigate any systemic unlawful discrimination that affects a class or group of persons and is continuous, repetitive or forms a pattern.

2. Cost Provisions

Introduce the concept of ‘cost-free jurisdiction’ currently found under the Fair Work Act 2009 (Cth) to claims made to a Court under the AHRC Act.

The Court will not be prevented from making cost orders against a party, however the Court will need to determine that circumstances exist that justify it making such orders.

In determining whether circumstances exist, the Court must have regard to:

• the financial circumstances of each of the parties to the proceedings;
• the conduct of the parties to the proceedings (including any conduct of the parties in dealings with the AHRC);
• whether any party to the proceedings has been wholly unsuccessful in the proceedings;
• whether any party to the proceedings has made an offer in writing to another party to the proceedings to settle:
  • the proceedings; or
  • the matter the subject of the terminated complaint; and

if so, the terms of the offer;

• whether the subject matter of the proceedings involves an issue of public importance; and
• any other matters that the court considers relevant.

3. Lowering the threshold for harassment on the grounds of sex

Lower the threshold for harassment on the grounds of sex. The current definition which was introduced in the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, defines harassment on the grounds of sex to mean “unwelcome conduct of a seriously demeaning nature”.

The Bill will remove the word ‘seriously’ to lower the threshold required so as to not impose an unnecessarily high threshold on applicants.

4. Extension of time limit for applications

Extend the time limit for applications under the Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth) and Racial Discrimination 1975 (Cth) from six (6) months to 24 months.

To prepare for these changes, which we expect to pass the Senate without significant variation, employers should be:

1. Reviewing all relevant policies and procedures to ensure they align with the amendments contained in the Bill and with the company’s values;
2. Proactively provide training to all employees on appropriate workplace behaviour, including senior management and board members.

If you require any assistance in reviewing your policies or providing training to your employees, please do not hesitate to contact MST Lawyers’ Employment Law team on 03 8540 0200 or workplace@mst.com.au