Will the government seize the opportunity missed by the Coalition? Bill to Implement Other [email protected] Recommendations – Employee Rights/Labour Relations

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Introduction of the new [email protected] bill

On September 27, 2022, the Government presented the
Anti-Discrimination and Human Rights (Respect at Work) Amendment Bill 2022 (New invoice) to implement the remaining legislative recommendations from the [email protected] report.

Background

On January 29, 2020, Kate Jenkins, Sex Discrimination Commissioner of the Australian Human Rights Commission, delivered
[email protected]: National Sexual Harassment Inquiry Report. The report follows a comprehensive national survey of employees in Australian workplaces and found that “sexual harassment in the workplace is widespread and pervasive”. It is significant that the report calls for a new approach to preventing and combating sexual harassment.

The report included a total of 55 recommendations, 12 of which specifically targeted legislative reform at the federal level.

In September 2021, the Gender Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth) (Previous invoice) – covering six of the recommendations – was adopted.

Missed opportunity?

At the time, the old bill was criticized for what it omitted.

In particular, recommendation 17 of the report called for changes to the Sex Discrimination Act 1984 (Cth)(SDA) to introduce a positive obligation for all employers to take reasonable and proportionate measures to eliminate, as far as possible, discrimination based on sex, sexual harassment and victimisation.

The report emphasized that sexual harassment must be viewed through the lens of work, health and safety, with an emphasis on identifying, minimizing and managing risks. The employer must be proactive, not simply reactive.

Despite sustained attempts by the (then) Opposition and the Greens, Recommendation 17 was not included in the earlier Bill. Indeed, the government (then) suggested that this was unnecessary since the positive duty already existed under occupational health and safety legislation and they wished to avoid duplication.

Implementation of the electoral promise

During the federal election campaign, Labor pledged to implement the report’s 55 recommendations.

And it now seems to be going well.

On September 27, the government introduced the new bill. Describing the new bill in the explanatory memorandum as a “suite of essential reforms…to ensure safer, respectful and fairer workplaces in Australia”, it includes the following proposed changes:

  • positive duty: the MS recognizes both the existing obligations under the WHS laws, as well as the existing obligation under Section 106 of the SDA to take all reasonable steps to prevent sexual harassment in order to avoid liability vicarious, which means that “employers should already prevent discrimination and harassment by their employees or agents in order to manage their potential liability under the SD Act”. However, the EM further explains “ that the WHS Model Laws and Positive Duty in the SDA are intended to work in a mutually reinforcing manner to create safer and more respectful workplaces.”
  • Powers of AHRC: the bill proposes to modify the
    Australian Human Rights Commission Act empower the AHRC to monitor and assess compliance with the positive obligation. This acknowledges the report’s conclusion that the AHRC should be able to initiate actions to ease the burden of complaining and prosecuting those affected by sexual harassment.
  • Hostile work environment: the bill proposes amendments to the SDA to prohibit conduct that subjects another person to a hostile work environment because of gender. This is designed to capture behavior such as the posting of obscene or pornographic material, general sexual banter or offensive innuendo and jokes, which, although not necessarily directed at any particular individual, may create a sexually charged or hostile environment, which makes a sex feel unwelcome. . The MS further notes that the circumstances to be considered in determining whether the conduct is unlawful include: the seriousness of the conduct; whether the behavior was continuous or repetitive; the role, influence or authority of the person engaging in the conduct; and any other relevant circumstances.
  • Sexual harassment: the previous bill inserted 28AA into the SDA, to include a new prohibition against harassment based on sex (as opposed to conduct of a sexual nature) where, because of sex: the person engages in unwelcome behavior of a seriously degrading nature in relation to the harassed person; and

  • the person does so in circumstances where a reasonable person, having regard to all the circumstances, would have foreseen the possibility that the harassed person would be offended, humiliated or intimidated. The new bill proposes to remove the reference to conduct of a “seriously” degrading nature to ensure that the threshold is not unnecessarily high for making a claim.

Where to go from here?

There is no doubt that the new bill will pass. As observed in the MA, given the obligations under Section 106 of the SDA to avoid vicarious liability, employers should already have systems, policies and processes in place to prevent and respond to sexual harassment. However, now is the time to review your organization’s approach to ensure that it is not only compliant, but reflects best practice. McCullough Robertson’s Labor Relations and Safety team is well placed to help you and your company assess your workplace policies and grievance mechanisms and can be contacted here.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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