2023 brings significant changes sexual harassment and discrimination legislation – are you ready?
Safe Work Australia reports that one in three people (33%) have experienced sexual harassment at work in the last five years.
New legislation related to sexual harassment and discrimination in 2023.
In late 2022, two significant changes to legislation were passed with regards to sexual harassment and discrimination. Both will impact operations in 2023.
– Introduction of Respect at Work Bill – effective now, which includes:
o Obligation to protect people from hostile work environments, and
o A positive duty to eliminate sex discrimination in the workplace
– Introduction of Secure Jobs, Better Pay Bill 2022 – effective 6 March 2023, which includes:
o Obligation to prohibit sexual harassment in the workplace, and
o New protected attributes – breastfeeding, gender identify and intersex status
Significantly, both Bills 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.
1. Introduction of Respect at Work Bill
The Senate has passed the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect at Work Bill).
This Bill followed the Sex Discrimination Commissioner’s 2020 report and recommendations, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces.
The Respect at Work Bill amends the Sex Discrimination Act 1984 (Cth) (SD Act) and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) (outlined below).
>> Key changes within Respect at Work Bill
1. Positive duty to prevent workplace sex discrimination, harassment and victimisation
The Respect at Work Bill inserts a new provision in the SD Act to introduce a positive duty on all employers and PCBUs to take ‘reasonable and proportionate measures’ to eliminate unlawful sex discrimination, including sexual harassment, as far as possible.
The positive duty extends to actions engaged in by an employer / PCBU, or by their employees, workers, and agents, towards each other, and towards third parties, such as customers.
‘Reasonable and proportionate measures’ 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.
2. Amendment to SD Act: Hostile workplace environments on the grounds of sex
The Bill inserts 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.
3. AHRC compliance and enforcement
The bill amends the AHRC Act to enable the commission to monitor, assess and enforce compliance with the new positive duty in the SD Act.
NOTE – These compliance changes will commence 12 months after the bill passes (end 2023), to allow employers to understand their obligations regarding the positive duty and make changes as necessary.
The AHRC will also be able to inquire into “any matter that may relate to systemic unlawful discrimination, or suspected systemic unlawful discrimination”
4. Work health and safety laws and Code of Practice: Managing psychosocial hazards at work
Sexual harassment and associated issues also fall under the category of ‘psychosocial hazards’ in work health and safety laws, at both a federal and state level. This is a reflection of the need for sexual harassment and associated issues to be considered as a safety risk by employers.
SafeWork has also recently issued the ‘Managing psychosocial hazards at work — Code of Practice’, which provides some guidance as to managing sexual harassment risks from a psychosocial hazard perspective. States and Territories have already, or propose to, implement changes reflective of these amendments to the model laws
2. Introduction of Secure Jobs, Better Pay Bill 2022
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 has a number of key amendments that respond to the recommendation in the Australian Human Rights Commission’s Respect@Work report that the Fair Work Act 2009 expressly prohibit sexual harassment.
>> Key changes within Secure Jobs, Better Pay Bill 2022 related to sexual harassment
This Bill will
– Expand the application of the FW Act in relation to sexual harassment to ‘workers’ rather than just ‘employees’;
– Impose a pecuniary penalty for sexual harassment; and
– Create vicarious liability for sexual harassment under the terms of the FW Act. Importantly, this will be not only for direct employers, but PCBUs such as principals.
– The imposition of a pecuniary penalty is significant, as under existing anti-discrimination legislation the primary remedy available is damages. Employers may now be exposed to pecuniary penalties as well as to substantiated injuries or damage.
The bill also proposes to amend the FW Act to include in the list of protected attributes:
– Gender identity;
– Intersex status; and
– Breastfeeding.
What do you need to do as an employer?
In preparation for these changes, employers should be identifying any potential sexual harassment risks within the business and considering what they need to do in order to comply with their positive duties.
This may include:
– Reviewing and amending relevant policies and procedures,
– Considering training needs – for boards, management and team members,
– Reviewing exit interviews and engagement surveys
– Reviewing any recent incident reports or EAP data,
– Ensuring sexual harassment is considered as a key priority at safety meetings.
Please speak with our team to see how we can support you in making required changes within your organisation, or understanding how the positive obligation may impact your current operations by calling Nikki Jenkinson on 0472 545 584 or leaving your details on the Contact page.
