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:
- the proposed changes to the law
- explain the terms:
- hostile work environment
- a positive duty; and
- importantly provide some actions you can take now to meet your compliance with the changes to the law.
What are the proposed changes to the law?
- Prohibit hostile workplace environments to guard against conduct that subjects another person to a workplace environment that is hostile on the ground of sex
- A positive duty – employers must actively take reasonable and proportionate measures to eliminate unlawful sex discrimination, sexual harassment and victimisation at work.
- Unlawful harassment on the ground of sex is no longer required to be seriously demeaning. This will make it easier for employees and others associated with the workplace to make claims of harassment on the ground of sex.
- New powers for the AHRC – the Australian Human Rights Commission to gain powers to enforce compliance with a positive duty by conducting inquiries and issuing compliance notices
- New costs approach – each party to bear their own costs in unlawful sexual harassment and/or sex discrimination claims under federal anti-discrimination laws
- Unions and other representative bodies will be able to bring court claims for one person and/or a group of people (class actions)
- 24-months to make age, race and disability complaints – sex or related characteristics only need to be ‘a reason’ for the conduct. This makes it easier (lowers the bar) for proving harassment on the ground of sex.
What could a hostile work environment look like?
- Displaying obscene or pornographic materials in the workplace
- Communication and conversation that reflects sexual banter, sexual innuendo or jokes of a sexual nature.
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?
- Review your workplace culture. Could your workplace be a hostile environment?
- Update your policies and procedures to demonstrate you are making proactive changes where required. Do your policies and procedures reflect a positive duty?
- Develop and implement a plan to prevent unlawful sex discrimination, sexual harassment and victimisation from occurring in your workplace
- Management must lead by example, ‘walk the talk’ and model appropriate workplace behaviours to mitigate the risk of your workplace becoming a hostile workplace environment
- Conduct risk assessments to identify the likelihood of unlawful sex discrimination, sexual harassment and victimisation occurring in your workplace. Take the necessary steps to eliminate or control any identified risks.
- Update your complaints procedure. Adopt a victim centric approach to managing complaints. All complaints must be treated seriously and investigated promptly.
- Training at induction and every 12-months for everyone in the workplace to make sure your people have read and understood the contents of your policies and procedures.
- Regular reinforcement. Communicate and consult with everyone in the workplace. Conduct toolbox talks, round table discussions, provide information in emails and social media posts that reflect a positive duty and appropriate workplace behaviour.
Do you need our help?
Ulton’s HR Consulting services can assist you with meeting your employer obligations, in the areas of:
- Provision of policies and procedures to manage unlawful sex discrimination, sexual harassment, victimisation and all other forms of unacceptable workplace behaviour
- A confidential complaint procedure for receiving and managing complaints
- Respect @ Work training and awareness workshops for your people
Our Respect@Work training workshops will commence in February 2023
Training outcomes:
Participants will learn about the changes in the law and what constitutes unacceptable workplace behaviour, preventing/eliminating unacceptable behaviour from occurring in the workplace and so much more.
Relevant case studies and real life examples to put training content into context. Participants engage in discussions and interactive activities. An assessment is completed by all participants during the training workshop.
All participants will receive a handbook and certificate of participation upon completion.
If you are interested in this training, please reach out to Christine Guy on (07) 4154 0413 or cguy@ulton.net and we will add you to our mailing list.
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