The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act (Respect at Work Act) received Royal Assent on 12 December and is now in force.
Key message
The Respect at Work Act has (amongst other things) introduced a positive duty on employers and persons conducting a business or undertaking (PCBU) to take steps to prevent workplace sexual harassment, discrimination on the grounds of sex and victimisation.
This marks a shift from the previous model which was focussed on responding to discrimination and harassment that had already occurred, and is a key part of the Federal Government’s response to the Respect@Work report, released by the Australian Human Rights Commission (AHRC) in 2020.
The AHRC will be granted power to monitor and enforce compliance with the Respect at Work Act, but this power only takes effect in 12 months to allow for a transitional period.
What does this mean for businesses?
All employers and PCBUs are now required to take reasonable and proportionate measures to eliminate discrimination, sexual harassment, and victimisation in the workplace as far as possible.
What is considered “reasonable and proportionate” will depend on:
- the size and nature of the business;
- resources available;
- practicability and costs of any elimination steps; and
- any other relevant matter.
However, under the Tasmanian Anti-Discrimination Act 1998, organisations must already ensure that employees are made aware of the discrimination and prohibited conduct covered by that Act which includes sexual harassment. Organisations must already take “reasonable steps” to ensure that employees do not engage in “prohibited conduct”, so the positive duty is nothing new in this regard in Tasmania. The Respect at Work bill simply adds to the obligations on business.
When do the changes come into force?
The positive duty applies from 12 December 2022.
However, there is a 12 month transitional period before the AHRC can use the enforcement powers. This is intended to give employers and PCBUs time to respond to the reform and for the AHRC to prepare guidance materials.
Enforcement
The AHRC will have the ability to:
- conduct inquiries into an employer’s compliance with the positive duty and provide recommendations to achieve compliance;
- give compliance notice specifying the action that person must take, or refrain from taking, to address their non-compliance;
- apply to the federal courts for an order to direct compliance with the compliance notice; and
- enter into enforceable undertakings where employers remain non-compliant.
Recommended steps to take now
Most businesses would have been taking steps to implement recommendations from the Respect@Work report already. Moreover, the Tasmanian Anti-Discrimination Act already requires reasonable steps to be taken to prevent discrimination and sexual harassment at work.
With the Respect at Work Act now passed, there is no more time to delay. Employers and PCBUs need to:
– Assess Risks
- Assess any current risks in your workplace in relation to sexual harassment, discrimination and victimisation.
- Prioritise sexual harassment on your risk register and develop a management plan to reduce the risk.
– Seek Employee Feedback on Risks
- Consult your workers about risks they perceive.
- Ask workers what they believe to be the driving force behind risks and what more they consider could be done to minimise the risk.
- Consider anonymous surveys where appropriate, to encourage disclosure of any risks or concerning behaviour.
– Review Policies and Procedure
- Scrutinise your current policy framework and whether there is any scope for improvement.
- Consider your Code of Conduct and whether express reference is made to sexual harassment.
- Seek legal assistance where necessary to ensure your policies and procedures reflect the current regulatory requirements.
– Educate and Train
- Provide regular education and training that is sexual harassment specific.
– Culture
- Consider how your organisational culture can be improved more broadly to embrace equality and diversity in the workplace.
- Be a champion for equality in the workplace and publicly commit to reducing any risk of sexual harassment.
– Regularly Review
- Regularly review your risk management strategy.
- Regularly review any complaints made.
- Consider whether any systematic change can be made following any complaints received.
More information and assistance
If you need assistance with any of the above actions, please contact the Employment & Safety group at Page Seager:
Joe Mullavey
Principal
M: 0416 794 061
E: jmullavey@pageseager.com.au
Audrey Clarkson
Associate
T: (03) 6235 5125
E: aclarkson@pageseager.com.au
Published: 14 December 2022
