Unpaid Trust Distributions: ATO's Rulings vs. Recent AAT Decision and What It Means for 2023
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Respect at work - unlawful sex discrimination, sexual harassment and victimisation
The Federal Government is set to implement 7 more recommendations from the Australian Human Rights Commission’s Respect@Work Report to eliminate unlawful sex discrimination, sexual harassment and victimisation in the workplace.
It is most likely that the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 introduced to Parliament by the Government on 27 September 2022, will be enacted.
To prepare for the changes to the law, a preventative approach is required.
Employers will be required to actively eliminate unlawful sex discrimination, sexual harassment and victimisation in their workplace.
Employer obligations
To meet your employer obligations, you are required to create a work environment that would prevent unlawful sex discrimination, sexual harassment and victimisation from actually occurring in the first place! How will you do this?
As a starting point, this article will introduce you to:
What are the proposed changes to the law?
What could a hostile work environment look like?
One person’s conduct against another person or, group of people, may result in the workplace environment being offensive, intimidating or humiliating (a hostile work environment).
A court will look at the behaviour itself not what the person intended or how a person or group of people received it. The mere fact that a person created a hostile environment unintentionally will not be a defence.
A positive duty
Many employers will already have in place an appropriate workplace behaviour policy and provide training to their people periodically as well as some control measures. Unfortunately, it is unlikely to satisfy a positive duty.
Employers will have a positive duty to prevent unlawful sex-based discrimination, harassment and victimisation (unacceptable behaviour) by taking reasonable and proportionate measures to eliminate unacceptable behaviour as far as possible.
Reasonableness of the measures will vary for employers. It will depend on the size and the nature/circumstances of your business (includes available resources, practicability and cost).
Develop and implement a prevention plan
All employers (regardless of size) will need to develop and implement a prevention plan that accurately identifies measures and eliminates unacceptable behaviour.
Adopt the same approach as you do to comply with your work health and safety obligations by conducting hazard and risk assessments. Create safe work statements and put in place safe work procedures based on sex, to specifically manage your workplace from becoming a hostile work environment.
If you do not do this, you may fail to meet the positive duty. If you fail to meet the positive duty, you will be vicariously liable for the unlawful conduct of your employees, contractors, suppliers, agents, clients/customers or any other person associated with your business.
Consider what actions you could take now.
An employer’s action list?
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