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Onus will be on employers to prevent sexual harassment under new laws 

18 October 2022

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, introduced into Federal Parliament last month, proposes to establish a positive duty on employers to prevent sexual harassment in the workplace. 

This proposal was one of the 55 recommendations made by Sex Discrimination Commissioner, Kate Jenkins, in her Respect@Work report.  

The Federal Government has committed to implementing all the recommendations and has already implemented some of these. The latest Respect@Work bill proposes to implement an additional seven of the 55 changes recommended. 

The new positive duty 

The most significant change proposed by the bill is to amend the Sex Discrimination Act 1984 (Cth) to introduce a positive duty on all employers and persons conducting a business or undertaking (PCBUs) to proactively prevent discrimination and harassment in their workplaces by taking reasonable and proportionate measures to eliminate, as far as possible, unlawful sex discrimination (including sexual and sex-based harassment, hostile work environments, and victimisation). 

Reasonable and proportionate measures are likely to include implementing relevant workplace policies and procedures, providing appropriate support to workers, and delivering training and education on a regular basis.  

In determining whether an employer or PCBU is complying with the positive duty, the following factors will be relevant: 

  • the size, nature and circumstances of the business or undertaking 
  • the employer or PCBU’s resources, and 
  • the practicability and costs associated with the measures 

The bill (if it passes) will also enable the Australian Human Rights Commission to monitor and assess compliance with this positive duty. 

Other recommendations proposed to be implemented 

Other amendments this bill proposes to the Sex Discrimination Act and the Australian Human Rights Commission Act 1986 (Cth) include: 

  • a prohibition on conduct that subjects another person to a workplace environment that is hostile on the ground of sex 
  • a statement that an object of the Sex Discrimination Act is to ‘achieve substantive equality between men and women’ 
  • making it clear that an object of the Sex Discrimination Act is to eliminate, so far as is possible, discrimination involving workplace environments that are hostile on the ground of sex 
  • give the Human Rights Commission a broad inquiry function to inquire into systemic unlawful discrimination or suspected systemic unlawful discrimination 
  • enable representative bodies (for example, unions) to make representative applications on behalf of people who have experienced unlawful discrimination in the federal courts  

The Australian Human Rights Commission has welcomed the introduction of this bill into Federal Parliament.   

The bill has been referred to a Senate committee and the committee’s report is due by 3 November 2022. 

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