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Australia: Respect at Work: Additional change on the horizon for sexual harassment legal guidelines in Australia

On 27 September 2022, the Anti-Discrimination and Human Rights Laws Modification (Respect at Work) Invoice 2022 (Invoice) was launched into the Home of Representatives.  The much-anticipated Invoice proposes to implement seven of the remaining legislative suggestions from the 2020 Jenkins’ Respect@Work Report.

The important thing proposed amendments within the Invoice are as follows:

    1. Constructive obligation: The introduction of a optimistic obligation within the Intercourse Discrimination Act 1984 (Cth) (SDA) on employers and PCBUs (obligation holders) to take cheap and proportionate measures to eradicate, so far as potential, illegal intercourse discrimination, sexual harassment, sex-based harassment, work environments which are hostile on the bottom of intercourse, and victimisation in relation to those issues;
  1. New prohibition on subjecting others to hostile office environments on the grounds of intercourse: The creation of a brand new prohibition towards conduct that topics one other particular person to a hostile office setting on the bottom of intercourse, and including a brand new object of the SDA as eliminating, as far as is feasible, discrimination involving office environments which are hostile on the grounds of intercourse; and
  2. Class actions and no prices jurisdiction: Amendments that permit for consultant our bodies (corresponding to unions) to make consultant purposes within the Federal Courts (often known as ‘class actions’) on behalf of a number of people who’ve skilled illegal discrimination, and together with value safety provisions within the Australian Human Rights Fee Act 1986 (Cth) (AHRC Act) so that every celebration bears its personal prices in discrimination courtroom proceedings (aside from in very restricted circumstances).

A few of these amendments, such because the introduction of the optimistic obligation, are a long-time coming. For the reason that Respect@Work report was launched in March 2020, we have now seen finest observe employers focussing on constantly enhancing their programs and processes and difficult the established order, to minimise the danger that sexual harassment and different illegal discrimination will come up of their workplaces. More and more, we’re seeing employers not simply deal with this as a ‘compliance’ or authorized challenge and are seeing these steps as critically vital to offering a protected office with a optimistic and productive tradition to staff and others who work of their workplaces.  Such actions are additionally more and more being seen as essential to discharging an employer’s ESG obligations.

Alternatively, the proposed introduction of a selected mechanism for sophistication actions for illegal discrimination within the Federal courts does give rise to the danger that there could change into growing litigation on this area. Nonetheless, it’s tough to see how such proceedings can be sensible or efficient in office discrimination issues that are usually extremely individualised.  The modification might also have a detrimental impression on the pattern amongst employers in the direction of transparency in relation sexual harassment and illegal discrimination, given the heightened litigation threat which that transparency could carry.  This could be unlucky given the appreciable progress which has been made in the direction of accountability and transparency in recent times.

While many employers have lengthy been getting ready for these modifications, the discharge of the Invoice is a transparent indication that the regulatory and legislative panorama for addressing sexual harassment and different illegal discrimination is ready to alter. For these employers who haven’t but examined their present programs and governance mechanisms for these points, the Invoice serves as a name to motion to start out this course of, sooner relatively than later.

Different key proposed amendments

The opposite key proposed amendments addressed within the Invoice embrace the next:

  • Conferring capabilities on the AHRC to monitor, assess and implement compliance with the optimistic obligation within the SDA;
  • Inserting new provisions to supply the AHRC with a broad inquiry operate to inquire into systemic illegal discrimination or suspected systemic illegal discrimination if requested to take action by the Minister, or of the AHRC’s personal volition;
  • Extending the timeframe for making complaints of age, incapacity and race discrimination to the AHRC by solely permitting the President of the AHRC Act to terminate the complaints on the grounds of time after 24 months (relatively than 6 months), aligning with the timeframe for complaints made beneath the SDA;
  • Amending the Office Gender Equality Act 2012 (Cth) to require Commonwealth Public Sector reporting to the Office Gender Equality Company (consistent with the non-public sector);
  • Clarifying that victimising conduct can type the idea of a civil motion for illegal discrimination (along with a legal criticism) beneath the Age Discrimination Act 2004 (Cth) (AD Act), Incapacity Discrimination Act 1992 (Cth) (DD Act) and the Racial Discrimination Act 1975 (Cth) (RD Act);
  • Decreasing the edge for an applicant to ascertain ‘harassment on the bottom of intercourse’ within the SDA by eradicating the requirement for the conduct to be ‘critically’ demeaning, (requiring the conduct to ‘demeaning’ solely); and
  • Amending the objects of the SDA to supply for ‘substantive equality’ between women and men relatively than ‘equality of alternative’.

While the Invoice was launched by the Federal Lawyer-Common, Hon Mark Dreyfus KC, MP, the Minister for Employment and Office Relations, Hon Tony Burke MP, is individually progressing proposed laws to incorporate an specific prohibition on sexual harassment within the Truthful Work Act 2009 (Cth).

Constructive obligation to eradicate illegal intercourse discrimination and so on.

The proposed introduction of the Federal optimistic obligation on obligation holders implements the first advice of the Respect@Work Report (Advice 17). This Advice was aimed toward shifting the duty away from victims of illegal discrimination to boost complaints, by making a optimistic obligation for obligation holders to take proactive measures to eradicate such conduct within the first place.

Notably, the proposed obligation within the Invoice expands the scope of the beneficial obligation (and the present obligation in Victorian laws) to cowl new prohibitions towards sex-based harassment (launched by the Intercourse Discrimination and Truthful Work (Respect at Work) Modification Invoice 2021), the prohibition towards subjecting somebody to a office setting which is hostile on the bottom of intercourse (proposed by the Invoice), and victimisation in relation to these issues.

To facilitate enforcement of the optimistic obligation, the Invoice inserts new provisions within the AHRC Act to allow the AHRC to observe, assess and implement compliance with the optimistic obligation within the SDA, together with powers to conduct inquiries, challenge compliance notices, apply to the Federal courts for compliance orders, and enter into enforceable undertakings.  These capabilities are proposed to start 12 months after Royal Assent.

Nonetheless, in assessing compliance, the Invoice proposes amendments to the SDA to specify quite a lot of issues to be taken under consideration, specifically:

  • the scale, nature and circumstances of the obligation holder’s enterprise or endeavor;
  • the obligation holder’s sources, whether or not monetary or in any other case;
  • the practicability and the price of elimination steps; and
  • some other related matter.

The intention is that this optimistic obligation would function concurrently with the requirement beneath the mannequin work well being and security legal guidelines to supply, as far as in all fairness practicable, a protected working setting for employees.

Many employers have already taken important motion to deal with sexual harassment and discrimination, which is able to nicely put together them for taking steps to discharge this optimistic obligation. For many who haven’t but reviewed their framework, there is a chance to take action given the optimistic steps which are required by the optimistic obligation if the Invoice passes.

Prohibition towards office environments which are hostile on the bottom of intercourse

This new prohibition implements Advice 16(c) of the Respect@Work Report, which was pushed by a discovering that sexual harassment is extra prone to happen in office environments that are “sexually charged or hostile”. The Explanatory Memorandum to the Invoice means that “conduct corresponding to displaying obscene or pornographic supplies, common sexual banter, or innuendo and offensive jokes” might contribute to sexually hostile office and end in illegal discrimination, corresponding to sexual harassment.[1]

The Invoice offers that this provision is breached if:

  • an individual engages in conduct of their office, or one other particular person’s office; and
  • the second particular person is current similtaneously or after the conduct happens; and
  • an affordable particular person, having regard to all of the circumstances, would have anticipated the potential of the conduct ensuing within the office setting being offensive, intimidating or humiliating to an individual of the intercourse of the second particular person by cause of:
    • the intercourse of the particular person; or
    • the attribute that appertains usually, or is mostly imputed, to individuals of the intercourse of the particular person.

While this proposed modification is critical in that it creates a brand new class of prohibited conduct, in actuality, as conduct which falls inside this class is prone to already be captured by present prohibitions towards sexual harassment, sex-based harassment or intercourse discrimination (or all of those prohibitions) we take into account that it’s unlikely to have a major impression on claims and litigation beneath the SDA.

That being mentioned, the introduction of the prohibition may have a broader impression in offering readability and consciousness amongst obligation holders, and staff and employees alike, on what’s unacceptable conduct within the office.

Consultant purposes (or ‘class actions’) and prices provisions

This modification implements Advice 23 of the Respect@Work Report, and would allow a consultant physique that has lodged a criticism on behalf of a number of individuals who’ve skilled illegal discrimination within the AHRC, to make a consultant utility to the Federal courts.  The proposed provisions would function along with the present class actions provisions beneath Half IVA of the Federal Court docket of Australia Act 1976 (Cth) and are meant to be a extra accessible mechanism for consultant proceedings within the anti-discrimination context.

The Invoice specifies proposed circumstances for consultant purposes together with that:

  • there’s a capability for an individual to ‘choose out’ of the consultant motion;
  • a category member can not make a separate utility in relation to the identical declare until they’ve opted out;
  • a consultant motion can’t be settled with out courtroom approval; and
  • a consultant utility is probably not made with out the written consent of every particular person on whose behalf the applying is made.

The Explanatory Memorandum offers an instance of a consultant motion, describing a state of affairs the place an employment advocacy centre brings a consultant motion on behalf of 4 girls inside an organisation who’ve been demoted on their return from parental go away.[2]

In an additional effort to extend accessibility for candidates, the Invoice proposes to insert value safety provisions within the AHRC Act, adopting a ‘prices neutrality’ strategy, such that as a default place, every celebration bears their very own prices in illegal discrimination proceedings, however courts nonetheless retain discretion to depart from this place and make prices orders the place they take into account it simply to take action. This differs from the Truthful Work prices provisions which solely allow prices to be ordered if a celebration instituted the proceedings vexatiously or with out trigger, or if the courtroom is glad {that a} celebration’s unreasonable act or omission prompted the opposite celebration to incur prices.

We’ll proceed to trace the progress of the Invoice because it progresses by means of the Senate.

[1] Explanatory Memorandum, paragraph 6.

[2] Explanatory Memorandum, paragraph 320.

This text was ready by Wendy Fauvel, Companion, Lucy Boyd, Senior Affiliate, and Josephine Mammone (Solicitor).

Wendy Fauvel

Anthony Wood

Shivchand Jhinku

Nerida Jessup

Olga Klimczak

Lucy Boyd



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