The Federal Government has committed to implementing all 55 of Sex Discrimination Commissioner’s recommendations in the Respect@Work Report. This report was released in March 2020 following a National Enquiry into Sexual Harassment in Australian Workplaces. It was led by the Australian Human Rights Commission and was announced against the backdrop of global movements such as #MeToo and several high-profile incidents concerning sexual harassment.
The recommendations ranged from conducting a national representative survey every 4 years to provide data on sexual harassment, introducing better education and training in schools, universities and other tertiary education institutions, and the workplace in respect of sexual harassment, to amending Australia’s complex and outdated legal and regulatory framework.
Most significantly, the report recommended that the Sex Discrimination Act 1984 (Cth) be amended to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible. In determining whether a measure is reasonable and proportionate, various factors are taken into account, including, but not limited to:
• the size of a person’s business or operations
• the nature and circumstances of the person’s business or operations
• the person’s resources
• the person’s business and operational priorities
• the practicality and the cost of the measures
• all other relevant facts and circumstances.
The previous Liberal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, supported by the Fair Work Amendment (Respect at Work) Regulations 2021 which both commenced in operation on 11 September 2021.
A further consultation process will be undertaken with key stakeholders to develop the precise terms of the new laws and amendments. Meanwhile, employers should to start thinking about the future implementation of the positive duty in respect of their organisation and continue to ensure they are adopting best practice in respect to preventing and addressing sexual harassment and sex discrimination in the workplace. This includes regular training, having clear processes to raise and deal with complaints, ensure their appropriate mechanisms to support staff impacted by sexual harassment, appropriate policies and procedures for dealing with power imbalances, and underlying factors which contribute to sexual discrimination and harassment.
To ensure best practice, boards, directors and senior management should also ensure they are viewing sexual harassment as a governance and safety issue and use their position to influence the prevention of sexual harassment in their organisation.
Disclaimer: This does not purport to be comprehensive or to render legal advice. You should not act based on any information contained in this publication without first obtaining specific professional advice. Consult your legal advisor to determine if this applies to you.
