New ‘Respect at Work’ Act (Nov 2022)
Just last week, the federal government passed the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, based on the recommendations put forth by National Sex Discrimination Commissioner Kate Jenkins. The Respect at Work Act shifts the emphasis from a complaints-based model to one where employers must take action, and continuously assess and evaluate whether they are meeting their obligations. Essentially shifting the onus of care from reactive to proactive.
The main 6 changes to the legislation that employers should be aware of are:
1. Introduction of Positive Duty
Employers have a responsibility to those in the workplace and must take reasonable and proportionate measures to eliminate sexual harassment. Whether the measure is considered reasonable and proportionate depends on the size and nature of the business, their resources, and the practicality and costs associated with the steps.
2. Lowering of the threshold for sex-based harassment
The previous threshold for sex-based harassment was “unwelcome conduct of a seriously demeaning nature”. The act removes the word “seriously” to lower the threshold, ensuring it doesn’t impose an unnecessarily high threshold on employees who wish to make a complaint.
3. New contravention about a hostile work environment
The act introduces a new course of action making it unlawful to subject a person to a hostile environment within a business. This provision does not necessarily mean offensive conduct directed towards a particular person, but rather repetitive or continuous behaviour that influences a workplace to become hostile on the grounds of sex. For example, conducts such as displaying obscene material or general sexual banter can result in people of a certain sex feeling excluded in the general environment, the existence of which can increase the risk of people experiencing harassment.
4. New powers to the Australian Human Rights Commission
The AHRC now has certain powers to ensure employers are complying with the Positive Duty change. This includes conducting inquiries if a business is suspected of non-compliance, recommending steps to compliance, issuing notices and applying to federal court for direct compliance orders. They are also able to inquire into systemic unlawful discrimination, such as underlying workplace culture that contribute to harassment.
5. Extension of the time limit for commencing a complaint
The legislation also extends the time limit for a complaint from six months to 24 months after the alleged acts or practices.
6. Class actions against discrimination more accessible
– Previously, if a complaint made by a union to the AHRC on behalf of employees was rejected, the union could not progress this complaint to federal court. The act now allows class actions to be brought to Federal court by a representative body with permission of those involved. This ultimately intends to make anti-discrimination class actions a more accessible mechanism.
The government’s new Respect@Work website provides access to information and resources.
Need in-house Workplace Respectfulness training? Check out our short course training options.